The Constitutional Principle: Separation of Church and State
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Rehnquist, Wallace v. Jaffree: a Rebuttal

Correcting the flawed history of Chief Justice W. Rehnquist

In a Usenet News Group recently, someone posted Supreme Court Justice (at that time) William Rehnquist's famous (or infamous) dissenting opinion in the case Wallace v. Jaffree, 472 U.S. 38 (1985). He posted it as proof that Separation of church and state was a myth.

Apparently the person posting that dissenting opinion didn't realize how flawed it was. This is our reply to that offering.

To begin, here are some interesting comments about Rehnquist and Wallace v. Jaffree by Larry Pahl: Establishing the History of the Establishment Clause

by Jim Allison


Rehnquist's dissenting opinion: Rebuttal
U.S. Supreme Court
Wallace v. Jaffree, 472 U.S. 38 (1985)
472 U.S. 38
Justice Rehnquist, dissenting

Note it was a dissenting opinion.

I realize that if given enough time and Bush appoints enough far right justices to the United State Supreme Court, Rehnquist might turn it into a majority opinion one day, but so far it is still a opinion that lost. Be sure to read the full opinion, including the majority opinion as well as any concurring opinions. Also be sure to read those portions of the opinion that address Justice Rehnquist's view of history.

Wallace v. Jaffree, 472 U.S. 38 (1985)

Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Powell, J., joined.

Powell, J., filed a concurring opinion, p. 62. O'connor, J., filed an opinion concurring in the judgment, p. 67.

Burger, C. J., p. 84, White, J., p. 90, and Rehnquist, J., post, p. 91, filed dissenting opinions.

Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16 (1947), summarized its exegesis of Establishment Clause doctrine thus:

"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States, [98 U.S. 145, 164 (1879)]."

How the Everson Court actually defined the Establishment Clause was:

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining [p*16] or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Reynolds v. United States, supra, at 164.


It can be added the all 9 justices were in agreement on this definition.

It also cited, considered and provided in full the following in Appendixes:

  • James Madison's Memorial And Remonstrance Against Religious Assessments
  • The bill sponsored and supported by Patrick Henry's "A Bill Establishing a Provision for Teachers of the Christian Religion" which Madison fought until it was defeated in the Virginia General Assembly and the Assembly passed Jefferson's "Bill for ReligiousFreedom."

Thus, the rationale they used didn't just rely on Jefferson's letter. Interesting that Rehnquist didn't mention any of that.

Everson v. Bd of Ed defined the Establishment Clause. Here are the footnotes that the court used to pen the definition:

Footnotes to Everson v. Bd of Ed.

This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause,

Actually the case wasn't decided on Free Exercise grounds either. The case was decided on civil law with regards to marriage being a contract. Makes one seriously wonder about how well Rehnquist or the clerk who actually researched and wrote the opinion that carries Rehnquist's name knew history and law.

quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation [472 U.S. 38, 92] between church and State." 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).1

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress.

Rehnquist's opinion regarding Jefferson's letter to the Danbury Baptist Association is his opinion perhaps but it certainly doesn't reflect the events surrounding Jefferson's creation of the letter. Rehnquist, or whichever clerk who actually wrote this, allowed his own personal beliefs to override whatever knowledge of history he might have had at this point:


See: The Library of Congress Misinterprets Thomas Jefferson: A Letter of Concern from Scholars


Mr. Rehnquist's Misplaced Metaphor

by Robert Alley

"The wall of separation between church and state is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging," wrote William Rehnquist in his now famous Wallace v. Jaffree dissent. "It should be frankly and explicitly abandoned."

Justice Rehnquist then justified this conclusion with a remarkably weak historical argument.

"It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was, of course, in France at the time the constitutional amendments known as the Bill of Rights were passed by Congress and ratified by the states. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the amendments were passed by Congress. He would seem to any detached observer as a less-than- ideal source of contemporary history as the meaning of the religion clauses of the First Amendment."

Justice Rehnquist's dissent has three problems:

First, Jefferson's reply to the Danbury letter was far from a short note of courtesy. Jefferson received the Danbury letter on December 30, 1801. On January 1, 1802, he sent the letter, a draft of his response, and a request to Attorney General Levi Lincoln. He wrote "The Baptist address, now enclosed, admits of a condemnation of the alliance between church and state, under the authority of the Constitution. It furnishes an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings as my predecessor did. The address, to be sure, does not point at this, and its introduction is awkward. But I foresee no opportunity of doing it more pertinently. I know it will give great offense to the New England clergy; but the advocate of religious freedom is to expect neither peace no forgiveness from them. Will you be so good as to examine the answer and suggest any alterations which might prevent an ill effect, or promote a good one, among the people?"(1)

Lincoln replied on the same day with the suggestion that Jefferson alter his comments on proclamations because, with the exception of Rhode Island, the other New England states were used to "proclamations from their respective executives." He went on: "This custom is venerable, being handed down from our ancestors," and "they regretted very much the late conduct of the legislature of Rhode Island on this subject. Based on Lincoln's advice, Jefferson excised, "Congress thus inhibited from acts respecting religion and the and the Executive authorised only to execute their acts, I have refrained from prescribing even occasional performances of devotion, prescribed indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect." Explaining his decision for the deletion, Jefferson wrote in the margin of the original draft, "This paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the Eastern states where the proclamation of Thanksgiving, etc., by their executive is ancient habit and is respected."(2)

This is hardly the stuff "a short note of courtesy" is made of.

Second, though in France, Jefferson was in constant communication with James Madison through a series of 36 letters exchanged between them from February 6, 1788, through November 1, 1788, the period that included the constitutional ratification convention in Virginia and the meeting of the first Congress in New York. Woven throughout these letters was a dialogue about a bill of rights. Contrary to Rehnquist's assertion, Jefferson seems an eminent and ideal source of contemporary history "as to the meaning of the religion clauses of the First amendment.."

Third, if the separation metaphor should be abandoned because Jefferson was a poor source for the history of the religion clauses and their meaning, what about James Madison's letter to Robert Walsh on March 2, 1819? Madison suggested to Walsh that there had been "an increase of religious instruction since the revolution." He surveyed the Virginia legislative actions in the 1770s and 1780s respecting as "the disproof of both opinions" (1) "that civil government . . . could not stand without the prop of religious establishment' and (2) that the Xn. Religion itself would perish if not supported by a legal provision for its clergy." He concluded: "The civil government . . . though bereft of everything like an associated hierarchy, possesses the requisite stability and performs its functions with complete success; whilst the _______ the industry and the morality of the priesthood and the devotion of the people have been manifestly increased by the total separation of the church from the state."(3)

Madison by the way, wasn't in France during the adoption and ratification of the Bill of Rights. On the contrary, he was its key architect, including the First amendment's religious clauses. Madison unlike Justice Rehnquist, didn't have a problem with the separation metaphor.

Thus for the sake of religious freedom, we can be thankful that Rehnquist's history was only a dissent, not a majority opinion.

(1) Letter from Thomas Jefferson to Levi Lincoln, January 1, 1802. Jefferson Papers, Library of Congress. In the course of the research preparatory to writing this section, the original handwritten documents noted in this discussion were examined at the Library of Congress along with the microfilm copies on reel 23.

(2) The note in Jefferson's hand, does not alter Jefferson's consistent refusal to make such proclamations. It merely reflects his awareness that the "ancient" traditions of the New England states, except for Rhode Island, would require time before they were altered. At the national level, religious exercises were subject "only to the voluntary regulations and discipline of each respective sect." These words were in the paragraph Jefferson omitted.

(3) Letter from James Madison to Robert Walsh, March 2, 1819 un The Writings of James Madison, edited by Gaillard Hunt (G. P. Putnam's Sons, 1908, Vol VIII, pp. 431, 432. (Italics supplied.)

Source of Information:

Mr. Rehnquist's Misplaced Metaphor, By Robert Alley, article appearing in Liberty, A Magazine of Religious Freedom, Vol. 92, No. 1, Jan. Feb. 1997.


Public Education and the Public Good

by Robert Alley

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State. 222

Modern critics of "separation" frequently insist that Jefferson dashed this letter off in haste, and Justice Rehnquist wrote in Wallace v. Jaffree 223 that it "was a short note of courtesy."224 The evidence is totally to the contrary. Jefferson received the Danbury Letter on December 30, 1801. On January 1, 1802, he sent the letter, a draft of his response, and a request to Attorney General Levi Lincoln. Jefferson wrote:

The Baptist address, now enclosed, admits of a condemnation of the alliance between Church and State, under the authority of the Constitution. It furnishes an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessor did. The address, to be sure, does not point at this, and its introduction is awkward. But I foresee no opportunity of doing it more pertinently. I know it will give great offense to the New England clergy; but the advocate of religious freedom is to expect neither peace nor forgiveness from them. Will you be so good as to examine the answer and suggest any alterations which might prevent an ill effect, or promote a good one, among the people? 225

Mr. Lincoln replied on the same day with the suggestion that Jefferson alter his comments on proclamations because, with the exception of Rhode Island, the other New England states were used to "proclamations from their respective executives."226 He went on: "This custom is venerable, being handed down from our ancestors . . . [and] they regreted very much the late conduct of the legislature of Rhode Island on this subject."227 Based on Lincoln's advice, Jefferson excised "Congress thus inhibited from acts respecting religion and the Executive authoritized only to execute their acts, I have refrained from prescribing even those occasional performances of devotion."228 Explaining his decision, Jefferson wrote in the margin of the original draft that "[t]his paragraph was omitted on the suggestion that it might give uneasiness to some of our republican friends in the eastern states where the proclamation of thanksgivings etc. by their Executive is an antient habit and is respected."229

What a remarkable story this is. In 1801, Baptists in Connecticut were still persecuted under a "mild" establishment. Jefferson, as President, could do nothing about the state laws except to anticipate seeing "the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.."230 In their hearts the Baptists knew that and so stated when they wrote: "[W]e are sensible that the President of the united States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President . . . will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. 231

These letters and events together reflect how seriously Mr. Jefferson approached the plight of fellow citizens, and, when understood in that context, make the separation metaphor profoundly significant.232. It was born out of human suffering, not rational abstraction. How Mr. Robertson, with such disdain for facts, could callously violate the dedication and commitment of those Connecticut Baptist citizens is difficult to fathom.

222. Letter from Thomas Jefferson to a Committee of the Danbury Baptist Association (Jan. 1, 1802), supra note 207, at 510.

223. 472 U.S. 38 (1985). 224

224. Id. at 92 (Rehnquist, J., dissenting).

225. Letter from Thomas Jefferson to Levi Lincoln (January I, 1802) (available in collection of Jefferson Papers (Manuscript Division) Library of Congress, Washington, D.C.). Jefferson undoubtedly felt "awkward" about the flowery language of the opening paragraph praising the President.

226. Letter from Levi Lincoln to Thomas Jefferson (Jan. 1, 1802) (available in collection of Jefferson Papers (Manuscript Division) Library of Congress, Washington, D.C.).

227. Id.

228. Letter from Thomas Jefferson to Committee of Danbury Baptists (Jan. 1, 1802), supra note 207, at 510.

229. Id. The note, in Jefferson's hand, does not alter Jefferson's consistent refusal to make such proclamations. It merely reflects his awareness that the "antient" traditions of the New England states, except for Rhode Island, would require time before they were altered. At the national level religious exercises were subject "only to the voluntary regulations and discipline of each respective sect." See id. These words were in the paragraph Jefferson omitted.

230 Id.

231. Letter from the Danbury Association, supra note 210. We are reminded that James Madison anticipated just the problem the Danbury Baptists experienced, knowing, as he did, that it was at the state level that violations of rights were most likely to occur. Thus did he attempt, unsuccessfully, to pass a bill applying the Religion Clauses to state laws. Id.; see supra notes 198-200 and accompanying text.

232. When Thomas Jefferson responded to the Baptists in Danbury, Connecticut, they were being severely persecuted because they were not a part of the Congregationalist establishment in that state. Jefferson sought to use his reply to enunciate his own principles on the subject of religious freedom and non-establishment. On December 30, 1801, he wrote his first draft of a letter that was to be sent two days later. Letter from Thomas Jefferson to Committee of the Danbury Baptist Association, supra note 207, at 510. In the original, Jefferson included a single word which he deleted with pen strokes prior to writing the final draft. As first devised by Jefferson, the wording was "thus building a wall of eternal separation between church and State." Id. Careful reading of the original manuscript in the Library of Congress leaves no doubt as to that word. Whatever prompted the President to strike that word, it is clear that as he first phrased his assessment of the First Amendment, the word "eternal" came to mind. This strongly suggests that separation of church and state was never simply a political solution for Jefferson, but a fundamental principle to which he was dedicated. While it certainly can be argued that Jefferson struck the word because he decided he did not mean it, a more plausible explanation is that he saw the word as an intrusive adjective that deflected from the effect of the crisp phrase "wall of separation." All we can say with certainty is that when he first devised the phrase, the word "eternal" flowed naturally in the context for him. To my knowledge no one has previously deciphered the word "eternal."

Jefferson did, in fact, use the word in one of his most remembered phrases swearing "eternal hostility against every form of tyranny over the mind of man." Letter from Thomas Jefferson to Benjamin Rush (Sept. 23, 1800), in A Jefferson Profile, supra note 55, at 120.

Source of Information:

"Public Education and the Public Good," by Robert Alley. William & Mary Bill of Rights Journal, Vol. 4, Issue 1, Summer 1995.


The following was adapted from Derek H. Davis, "Jefferson's Letter to the Danbury Baptists: The Original Meaning of the Wall of Separation Metaphor," Liberty, January-February, 1997, pages 12-18. Used in Therefore with permission. Dr. Davis is director of the J.M. Dawson Instititute of Church-State Studies, Baylor University. Jefferson's Letter to The Danbury Baptists: The Origin And Meaning of The "Wall of Separation" Metaphor

He would seem to any detached observer

A detached observer would not be an accurate description of what Rehnquist, or his clerk, was.

as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

I actually agree, to some degree, with Rehnquist (or the clerk who actually researched and wrote the opinion) on this point. I agree in this way: the best source of all on the meaning of the Establishment clause and the whole of the constitutional principle of church state separation embodied in the U S Constitution was not Thomas Jefferson, but instead was James Madison.

However, Jefferson and Madison were pretty much on the same page when it came to church and state separation. Most scholars feel that Jefferson's Statute for Religious Freedom was the Foundation that Madison used in proposing and helping to frame the Religious clauses of the Constitution.

Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. I am very glad to see that he acknowledged that fact.
He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State."

The first thing we see is that those records are very incomplete. Letters that were exchanged between members of Congress and various friends during this time period indicate that there was far more to the debates than have survived or was originally recorded:

Introduction What intent, whose intent?

Original Intent? Part II Excerpts from correspondence of members of the First Federal Congress -- January 2, 1789 to June 30, 1789

Original Intent? Part III Excerpts from correspondence of members of the First Federal Congress -- July 5, 1789 to August 18, 1789

Original Intent? Part IV Excerpts from correspondence of members of the First Federal Congress -- August 19, 1789 to October 2, 1789

It is a bit difficult to form accurate conclusions when it is known that we have a incomplete record.

During the debates in the Thirteen Colonies over ratification of the Constitution, Thirteen colonies? By the time we got to time frame of the Constitutional Convention and the ratification of the Constitution the year was 1787-88. The thirteen colonies had ceased to exist when they declared their independence from England, framed their first constitutions and began operating under those documents. That would have been about eleven or twelve years earlier than 1878-88.
one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government [472 U.S. 38, 93] carried with it a potential for tyranny. The typical response to this argument on the part of those who favored ratification was that the general Government established by the Constitution had only delegated powers, and that these delegated powers were so limited that the Government would have no occasion to violate individual liberties. This response satisfied some, but not others, and of the 11 Colonies which ratified the Constitution by early 1789, 5 proposed one or another amendments guaranteeing individual liberty. Three - New Hampshire, New York, and Virginia - included in one form or another a declaration of religious freedom. See 3 J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id., at 328. Rhode Island and North Carolina flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights. 1 id., at 334; 4 id., at 244. Virginia and North Carolina proposed identical guarantees of religious freedom: I recommend the following as well:

"[A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established, by law, in preference to others." 3 id., at 659; 4 id., at 244. 2

On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution." 1 Annals of Cong. 424.

Congressional Debates: Religious Amendments, 1789

Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures [472 U.S. 38, 94] sought by a number of his fellow citizens which could surely do no harm and might do a great deal of good.

Does Rehnquist or the clerk that did his work for him truly not understand that our BORs was the result of politics? Did they truly not understand that the issue of a BORs was a weapon the anti-rats (anti-feds) were using to try and derail ratification of the Constitution. That they wanted to force a second Constitutional Convention so they could revamp the proposed Constitution, thus weakening it . That many of the anti-rats were concerned with maintaining the power and influence they held on their own "turf" and they didn't want to lose that? Did they not understand that Madison realized this and promised to introduce the subject of amendments to Congress, and he did so to "steal" the thunder from the anti-rats as much if not more than for any other reason? I wonder why Rehnquist or his clerk didn't mention that the people that Madison had the most problems with as he worked to get amendments introduced, and debated were from those same types who had yelled about a lack of a BORs during the ratification period. If Rehnquist or his clerk is going to introduce this topic, they should have given the full story, not a edited version that is very misleading.

There is no doubt that Madison, acting in fulfillment of his campaign pledge, was the catalyst in the congressional history of the federal Bill of Rights. President Washington had, it is true, referred, in his first message to Congress, to the widespread demand for amendments to the Constitution. But he had declined to make "particular recommendations on this subject," leaving it to Congress to decide what to do on the matter.

Congress itself was concerned with other subjects during the first part of its session. On May 4, Madison made an announcement (in the midst of a lengthy debate on import and tonnage duties) of his intention "to bring on the subject of amendments to the constitution" on May 25. Madison may have been stimulated to act when he did in order to counter the movement for a Second Convention, which was embodied in the application from the Virginia Legislature for such a Convention, which was introduced by Congressman Bland the very next day, as well as a similar application from New York on May 6. Madison was able to secure the filing of both applications (rather than reference to the Committee of the Whole). When Madison actually introduced his proposed amendments on June 8, that effectively ended any chance the applications for a Second Convention might otherwise have had.

Madison did not bring up the subject of amendments on May 25. as he had announced he would, probably because the House was still in the midst of its debate on import duties. Apparently it was agreed, though the Annals are silent on the point, to postpone the subject for two weeks. On June 8, Madison rose at the beginning of the session and reminded the House that this was the day assigned for considering the subject of constitutional amendments. He said he would bring the amendments forward, "and advocate them until they should be finally adopted or rejected by a constitutional majority of this House." He then moved that the House go into Committee of the Whole tn consider the matter

Source of Information:

The Bill Of Rights: A Documentary History, Vol. II, Bernard Schwartz, Chelsea House Publishers, in association with McGraw Hill Book Company, N.Y. Toronto, London, Sydney (1971) pp 1006.


One additional comment:

Opposition came not so much from the Federalists, even though they most of them saw no need for a Bill of Rights (and as a result was at best only lukewarm towards debating such), but rather from the more extreme anti-federalists, who wanted no palliative that would head of calling of a second convention. William Grayson of Virginia was convinced that the drive for amendments was a plot "to break the spirit of the anti-federalists party by divisions."

Source of Information:

The First Federal Congress 1789-1791, By Margaret C. S. Christman, Published by the Smithsonian Institution Press, (1889) pp 132)


See these articles: [These letters show that maybe 1/3 of the members of Congress were agaisnt amendments at this time, for a varity of reasons. Some felt they would do no good, were a waste of time, etc. About maybe 1/3 were rather neutral about them but were willing to vote yea and the final 1/3 thought them valuable and important. ]

He said, inter alia:

"It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished." Id., at 431-432.

The language Madison proposed for what ultimately became the Religion Clauses of the First Amendment was this:

"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." Id., at 434. [472 U.S. 38, 95]

On the same day that Madison proposed them, the amendments which formed the basis for the Bill of Rights were referred by the House to a Committee of the Whole, and after several weeks' delay were then referred to a Select Committee consisting of Madison and 10 others. The Committee revised Madison's proposal regarding the establishment of religion to read:

"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729.

The Committee's proposed revisions were debated in the House on August 15, 1789. The entire debate on the Religion Clauses is contained in two full columns of the "Annals," and does not seem particularly illuminating. See id., at 729-731.

Of course not, as explained earlier, they are very incomplete. Also this particular debate that is recorded here concerns the following wording:

"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed."

and of course that wording was ultimately rejected.

Representative Peter Sylvester of New York expressed his dislike for the revised version, because it might have a tendency "to abolish religion altogether." Representative John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." Id., at 729. Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights - that Congress had no delegated authority to "make religious establishments" - and therefore he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e 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."

Madison then spoke, and said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id., at 730. He said that some of the state conventions had thought that Congress might rely on [472 U.S. 38, 96] the Necessary and Proper Clause to infringe the rights of conscience or to establish a national religion, and "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." Ibid.

Representative Benjamin Huntington then expressed the view that the Committee's language 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 upon it." Huntington, from Connecticut, was concerned that in the New England States, where state-established religions were the rule rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronise those who professed no religion at all." Id., at 730-731.

Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word `national' was introduced, it would point the amendment directly to the object it was intended to prevent." Id., at 731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience." Ibid.

Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during [472 U.S. 38, 97] the ratification debates that a federal government, not a nationalgovernment, was created by the Constitution. Madison thereby withdrew his proposal but insisted that his reference to a "national religion" only referred to a national establishment and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against. Ibid.

The following week, without any apparent debate, the House voted to alter the language of the Religion Clauses to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id., at 766. The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964).

The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment.

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

The House and the Senate both accepted this language on successive days, and the Amendment was proposed in this form.

On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the [472 U.S. 38, 98] House of the Amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights. 3 His original language "nor shall any national religion be established" obviously does not conform to the "wall of separation" between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language - "that Congress should not establish a religion, and enforce the legal observation of it by law" is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the Select Committee of the House, he urged that the language "no religion shall be established by law" should be amended by inserting the word "national" in front of the word "religion."

It seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a nationalreligion, and perhaps to prevent discrimination among sects.

Seems indisputable? A bit wishy washy. Indisputable to who besides Rehnquist?

See the article below (URL below) with regards to James Madison and his thought and feelings about what constitutes a national religion. As usual, Rehnquist is incorrect in his assessment or understanding or what Madison meant or was referring to.

James Madison And "national religion"

He did not see it as requiring neutrality on the part of government between religion and irreligion.

William Lee Miller, who has made a special study of the role of religion in the nation's founding, summarized the conclusion of that study in these striking words:

Did "religious freedom" for Jefferson and Madison extend to atheists? Yes. To agnostics, unbelievers, and pagans? Yes. To heretics and blasphemers and the sacrilegious? Yes. To "the Jew and the Gentile, the Christian and the Mohametan, the Hindoo, and infidel of every denomination?" Yes. To Papists? Yes. To "irreligion"? Yes. To people who want freedom from religion? Yes. To people who want freedom against religion? Yes.(9)

(9) William Lee Miller, "The Ghost of freedoms Past," in The Washington Post National Weekly Edition (13 October 1886), p. 23.


James Madison's Memorial and Remonstrance (June, 1785)

Excerpts from James Madison's Detached Memoranda (written after 1817)

Thus the Court's opinion in Everson - while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the [472 U.S. 38, 99] Virginia Statute of Religious Liberty - is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights. Where is the proof that the court was totally incorrect.

The repetition of this error in the Court's opinion in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948), and, inter alia, Engel v. Vitale, 370 U.S. 421 (1962), does not make it any sounder historically. Finally, in Abington School District v. Schempp, 374 U.S. 203, 214 (1963), the Court made the truly remarkable statement that "the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States" (footnote omitted). On the basis of what evidence we have, this statement is demonstrably incorrect as a matter of history. 4And its repetition in varying forms in succeeding opinions of the Court can give it no more authority than it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history.

None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them from the Select Committee, or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a nationalchurch, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly. If one were to follow the advice of JUSTICE BRENNAN, concurring in Abington School District v. Schempp, supra, at 236, and construe the Amendment in the light of what particular [472 U.S. 38, 100] "practices . . . challenged threaten those consequences which the Framers deeply feared; whether, in short, they tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent," one would have to say that the First Amendment Establishment Clause should be read no more broadly than to prevent the establishment of a national religion or the governmental preference of one religious sect over another.

One has to wonder exactly how the following was preventing "the establishment of a national religion or the governmental preference of one religious sect over another."

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

or

Excerpts from James Madison's Detached Memoranda (written after 1817)

and how the following fits if it was just to prevent the establishment of a national religion, etc.

Madison pointed out that one intent was to prevent the use of the "necessary and proper" wording to make laws regarding religion, something you have suggested be done. He also pointed out that people feared one or more religions combining and then forcing others to go along with the program so to speak. What is interesting about that is, it shows that any interpretation of the word establishment that requires the government to be involved is too narrow. Religions, religious sects, religious denominations can create establishments of religion.

From The House of Representatives "The civil rights of none shall be abridged on account of religious beliefs, nor shall any national religion be established, nor shall the full and equal rights of conscience in any manner or in any respect be infringed."

(Civil rights, establishment, rights of conscience, broad word establishment used)

Not accepted

"No religion shall be established by law, nor shall the equal rights of conscience be infringed." (Establishment and conscience, broad word establishment used) Not accepted "Congress shall make no laws touching religion , or infringing the rights of conscience." (Establishment and conscience, broad word establishment used) not accepted "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." (Establishment, free exercise, conscience, broad word establishment used) not accepted From The Senate [Stylistic change in the Senate] "Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." (Establishment, free exercise, conscience, broad word establishment used) not accepted "Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed " (Establishment of a preference, conscience, narrow non preference use of establishment) not accepted "Congress shall not make any law, infringing the rights of conscience, or establishing any religious sect or society." (establishment of a preference, conscience, narrow non preference use of establishment) not accepted "Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting free exercise thereof, nor shall the rights of conscience be infringed." (preference establishment, free exercise, conscience, narrow use of non preference reference to establishment) not accepted "Congress shall make no law establishing religion, or prohibiting the free exercise thereof." (Establishment, free exercise, back to broad use of establishment) not accepted "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." (establishing preference, free exercise, back to narrow non preference use of the word establishment)

not accepted

From The Joint House-senate Committee

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

(establishment, free exercise, back to broad)

accepted.

What can be said with any degree of certainty?

We do know for sure that it was to prevent the later use of the "necessary and proper" wording from being used as a doorway to make laws regarding religion. We know that because Madison mentions that.

We do know that it was to prevent a sects, denominations, religions from combining and establishing religions, forcing others to go along with the program. We know that again because Madison mentions it.

We know the obvious, that is it was meant to prevent the government from establishing religion, a religion, a sect, a denomination as the "official" religion of the nation. However, that might be less obvious if it is taken into account that Congress was made up of members from all the states (well maybe not all N C and R I had not ratified the Constitution yet, and while they did eventually do so and did eventually send people to Congress I think that during the first session of the first congress neither of those states had people in congress). There was a mixture of religious beliefs which would have made it very difficult for any one sect, denomination etc to gain enough support to allow for the passage of laws making it the "official" religion. So that is just one factor to take into account.

We also know that Congress was prevented from making an law RESPECTING an establishment of religion. We know that because those words were eventually chosen to be used.

We know that several non preferential proposals were made and all lost out to the more broad, less defined word establishment, but even that word did have meaning that applied in this country.

"Of the eleven states that ratified the 1st Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion."

Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment, by Thomas Curry, page 220


As has been shown, the historical record of those debates in Congress is incomplete

The actions of the First Congress, which reenacted the Northwest Ordinance for the governance of the Northwest Territory in 1789, confirm the view that Congress did not mean that the Government should be neutral between religion and irreligion.

Oh please: There are a lot of things that can honestly said about the Northwest Ordinance. The above it not one of them.

The Northwest Ordinance guarantees religious freedom.

ARTICLE I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

There can be no religious freedom unless that includes the right of irreligion


Simpson's Contemporary Quotations, compiled by James B. Simpson. 1988.
Author: Robert H Jackson, Associate Justice, US Supreme Court
Quotation: The day that this country ceases to be free for irreligion, it will cease to be free for religion.
Attribution: Dissenting opinion in 6-3 ruling that allowed release of public school children for religious instruction, 28 Apr 52
Subjects: The World: Law: Judicial Opinions
Biography: Columbia Encyclopedia.

A Discussion of Freedom of Religion And Freedom From Religion

The House of Representatives took up the Northwest Ordinance on the same day as Madison introduced his proposed amendments which became the Bill of Rights; while at that time the Federal Government was of course not bound by draft amendments to the Constitution which had not yet been proposed by Congress, say nothing of ratified by the States, it seems highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals. The Constitutional Convention was meeting in Philadelphia, Penna, the Cont. Congress was meeting in New York City. This was in the time before telephones, rapid transit, telegraph, etc. The argument sounds good, until one studies the fats of the two separated events.
The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest Ordinance of 1787 and provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Id., at 52, n. (a). Land grants for schools in the Northwest Territory were not limited to public schools. It was not until 1845 that Congress limited land grants in the new States and Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 163 (1964)

Northwest Ordinance (1787)

Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.


The Northwest Ordinance (1787-89

The Northwest Ordinance

The Northwest Ordinance: Course of Debate


In this act, the First Congress adopted as its own the Northwest Ordinance of 1787, . .

.

Nor thwest Territory Bill [HR-14] July 21, 1789


A Century of Lawmaking for a New Nation: U.S. Congressional Documnts and Debates, 1774-1875

Tuesday July 21.

Journal of the House of Representatives of the United States, 1789-1793

An engrossed bill to provide for the government of the territory Northwest of the river Ohio was read the third time.

Resolved, That the said bill do pass, and that the title be, "An act to provide for the government of the territory Northwest of the river Ohio."

Ordered, That the Clerk of this House do carry the said bill to the Senate, and desire their concurrence.

On motion,

Page 63 | Page image

On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative [472 U.S. 38, 101] Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he "could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them." 1 Annals of Cong. 914 (1789). Representative Aedanas Burke objected to the resolution because he did not like "this mimicking of European customs"; Representative Thomas Tucker objected that whether or not the people had reason to be satisfied with the Constitution was something that the States knew better than the Congress, and in any event "it is a religious matter, and, as such, is proscribed to us." Id., at 915. Representative Sherman supported the resolution "not only as a laudable one in itself, but as warranted by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion . . . ." Ibid.

Boudinot's resolution was carried in the affirmative on September 25, 1789. Boudinot and Sherman, who favored the Thanksgiving Proclamation, voted in favor of the adoption of the proposed amendments to the Constitution, including the Religion Clauses; Tucker, who opposed the Thanksgiving Proclamation, voted against the adoption of the amendments which became the Bill of Rights.

Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness." 1 J. Richardson, Messages and Papers of [472 U.S. 38, 102] the Presidents, 1789-1897, p. 64 (1897). The Presidential Proclamation was couched in these words:

"Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

"And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and [472 U.S. 38, 103] us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best." Ibid.

George Washington,

Representative Thomas Tucker on Church and State

John Adams,

The national fast recommended by me turned me out of office. ... This principle is at the bottom of the unpopularity of national fasts and thanksgivings. Nothing is more dreaded than the national government meddling with religion. June 12, 1812 Letter of John Adams to Benjamin Rush, as provided in "The Spur of Fame," Schutz JA and Adair D, eds. (The Huntington Library, San Marino, CA, 1966), page 224. In fact, Adams was quite correct in his (too late) recognition that there was popular revulsion to such religious activities on the part of the federal government. The editor of the Philadelphia Aurora explained why there was objection to the President's recommendation for a fast:

Because there is nothing in the constitution giving authority to proclaim fasts ... Because prayer, fasting, and humiliation are matters of religion and conscience, with which government has nothing to do ... And Because we consider a connection between state and church affairs as dangerous to religious and political freedom and that, therefore, every approach towards it should be discouraged ... (Philadelphia Aurora, Wednesday, May 9, 1798 (from Rosenfeld RN. "American Aurora" (St. Martin's Press, New York, 1997) page 113)).

and James Madison

Excerpts from James Madison's Detached Memoranda (written after 1817)


July 10, 1822

I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Congs. when they appointed Chaplains, to be paid from the Natl Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Constn. the maxim of the law, de minimis non curat.

There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eye of the Constitution.

Whilst I was honored with the Executive Trust I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms. In this sense, I presume you reserve to the Gov' a right to appoint particular days for religious worship throughout the State, without any penal sanction enforcing the worship.

I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small & even unpopular sect in the U.S., would rally, as they did in Virga when religious liberty was a Legislative topic, to its broadest principle.

Nothwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded ags'. And in a Gov' of opinion, like outs, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov' will both exist in greater purity, the less they are mixed together.

It was the belief of all sects at one time that the establishment of Religion by law, was right 6 necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was which was the true religion. The example of Holland proved that a toleration of sects, dissenting from the established sect, was safe & even useful. The example of the Colonies, now States, which rejected religious establishments altogether, proved that all Sects might be safely & advantageously put on a footing of equal & entire freedom.... We are teaching the world the great truth that Gov" do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Gov'.

Source of Information:

Excerpt of letter to Edward Livingston from James Madison, July 10, 1822. Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)

all issued Thanksgiving Proclamations; Thomas Jefferson did not, saying:

"Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it." 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed. 1904).

Religious Proclamations Unconstitutional

Written by Thomas Jefferson to The Rev. Mr. Millar

Washington, January 23, 1808

I have duly received your favor of the eighteenth, and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with. I consider the government of the United States as INDICATED BY THE CONSTITUTION FROM INTERMEDDLING WITH RELIGIOUS INSTITUTIONS, THEIR DOCTRINES DISCIPLINES, OR EXERCISES. (2) (emphasis in original) This results not with religion. only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that, also, which reserves to the States the powers not delegated to the United Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must, then, rest with the States, as far as it can be in any human authority. But it is only proposed that I should RECOMMEND, not prescribe a day of fasting and prayer. That is, that I should INDIRECTLY assume to the United States an authority over religious exercises, WHICH THE CONSTITUTION HAS DIRECTLY PRECLUDED THEM FROM. It must be meant, too, that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not, indeed, of fine and imprisonment, but of some degree of proscription, perhaps in public opinion. And does the change in the nature of the penalty make the recommendation less a law of conduct for those to whom it is directed., I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies, that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining them, an act of discipline.

Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, WHERE THE CONSTITUTION HAS DEPOSITED IT.

Source of Information:

American State Papers, Bearing on Sunday Legislation, compiled and annotated William Addison Blakely, Revised Edition Edited by Willard Allen Colcord. The Religious Liberty Association (1911) pages 174-175) (Original publication of letter, Works of Thomas Jefferson, ed. Ford. Vol. 5, Pages 236-37).

As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations. Typical of these was Jefferson's treaty with the Kaskaskia Indians, which provided annual cash support for the Tribe's Roman Catholic priest and church. 5It was not until 1897, when aid to sectarian education [472 U.S. 38, 104] for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools. See Act of June 7, 1897, 30 Stat. 62, 79; cf. Quick Bear v. Leupp, 210 U.S. 50, 77 -79 (1908); J. O'Neill, Religion and Education Under the Constitution 118-119 (1949). See generally R. Cord, Separation of Church and State 61-82 (1982). This history shows the fallacy of the notion found in Everson that "no tax in any amount" may be levied for religious activities in any form. 330 U.S., at 15 -16.

(1) R. Cord is a conservative author who wrote Separation of Church and State with the purpose of countering Leo Pfeffer's book, Church, State and Freedom (Rev Ed 1967) L Levy Cord's book "Most;y Historical Fiction masquerading as scholarship." The Establishment Caluse, Religion and the First Amendment, Leonard W. Levy Second Edition, Revised. North Carolina Press (1994) p. 261

(2) The following sheds more light on this subject. It is part of the affidavit that we sent to the group of lawyers that was writing a friends of the court brief on behave of the Alabama Historical society to be filed with the Alabama Supreme Court in the Judge Moore Ten Commandments case to be heard later this summer..

Eidsmoe, in case you aren't familiar with the name is a lawyer and ultra Right author who writes frequently in defense of Religious Rights positions. he had filed an affidavit. on Judge Moores behave, and I was primarily responding to his claims in his affidavit.


VI. Page 10 of Eidsmoe's Supplementary affidavit contains that tired old argument used by several of the religious right, over and over again. They really ought to be ashamed of themselves. I speak of Thomas Jefferson funding the religious education of the Indians. (The very same critics are reluctant to mention that even Washington was guilty of denying the Indians religious liberty protection.)

I think Robert Cord also makes this famous argument, and he should have known better. The argument is that since Catholic Priests were given money to convert the Indians, therefore, the principle of separation of church and state does not preclude the funding of, among other things, religious schools. This argument begins to fall apart, however, when it is revealed that most of the Catholic Priests who received money during that time period for the purpose of converting Indians, were in fact, employed by the government as Indian Agents.

A. Enclosed you will find some portions of a book, RETAINED BY THE PEOPLE, A History of American Indians and the Bill of Rights, By John R Wunder, which basically argues that Indians were thought of differently, and were treated differently. Washington, Jefferson and any other president who had dealings with the Indians would have dealt with them totally differently, viewed them totally differently then anyone else.

According to Wunder, the Bill of Rights never applied to the Indian nations, and the status of Indians in the early republic was ambiguous. The founders (Jefferson included) spoke of the Indians as separate nations, but always thought of them, in some very tenuous sense, as citizens. As time went on, their status as independent nations became less and less emphasized, and their status as quasi-citizens became more and more prominent. Needless to say, this process was helped by a variety Supreme Court decisions that deprived the Indians of rights that a more sympathetic reading of the Constitution might have given them.

In any case, let me quote from the book:

But what is important here is whether the Bill of Rights amendments applied to Native Americans in 1791. What was meant by the phrase "of the people" in these amendments? .... Might Native Americans be covered once they signed treaties turning over much of their lands to the United States? Did the Constitution include Native Americans residing on reservations within the geopolitical boundaries of the United States?

From the very first applications of the Bill of Rights, native Americans have not been covered by its penumbra....Although they were not yet citizens of the Unites States, they also were not aliens. Congress and the Supreme court therefore moved to develop laws that created a new kind of legal life for Indians within the American legal system. Indians, after all, held sovereignty over the lands that became the United States, and this allowed for a residue of sovereignly left over in the tribes after the signing of treaty documents. If an Indian ceases being an Indian per se and renounced his or her tribal status, then the Bill of Rights might apply. Thus in their relationship with the first ten amendments, Native Americans were considered both pre-Bill of Rights and extra-Bill of Rights." (pages 20-21)

The book then goes on to discuss various laws passed by early Congresses that pretty clearly violated the Bill of Rights, including the First Amendment. Example: in 1800 Congress passed a law that prevented the Indians from speaking diplomatically with other nations, and that prevented the Indians from speaking against the Federal government. Other laws severely limited the Indians rights of trade with Americans. In the 1820s and 1830s Congress passed laws that required Indians committing crimes against non-Indians to be tried in Federal courts "even though Bill of Rights guarantees concerning criminal procedure were not yet applicable to Indians." (pg. 23).

Concluded Wunder:

"The passage of these trade laws and their subsequent implementation meant that the Bill of Rights probably would not be applied to Indians in the United States." (pg. 23).

The book certainly seems to suggest the founders thought of the Indians as independent nations, but their actions weren't always consistent with that belief. The more important issue here is that, from the very beginning, Congress acted as if the Bill of Rights did not apply to the Indians (since they weren't citizens). That might let them do things with respect to religion that they simply wouldn't do to a citizen of a state.

(After all, using a combination of Treaties, Laws and courts, and the U S Army, we just about destroyed their culture and them as a people. The leaders of this nation, no matter how great and noble, have always treated the Indians "differently" and that is putting it mildly. Any restrictions that the concept of separation of church and state, found in the unamended constitution, or any reinforcement of those restrictions that were created by the religious clauses of what is now the 1st Amendment was not viewed as applying to the government in regards to the native peoples of this land.)


(3) A note on "civilizing" the "American Indian"


(4) October 1, 1803

Notes for annual message, Oct. 17, 1803: alterations and additions, etc [1]

(3) after "assure"-are proposed "in due season, and under prudent arrangements, important aids to our Treasury, as well as," an ample etc.

Quere: if the two or three succeeding paragraphs be not more adapted to the separate and subsequent communication, if adopted as above suggested.

(4) For the first sentence, may be substituted "In the territory between the Mississippi and the Ohio another valuable acquisition has been made by a treaty etc."[3.] As it stands, it does not sufficiently distinguish the nature of the one acquisition from that of the other, and seems to imply that the acquisition from France was wholly on the other side of the Mississippi

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.[4.]

FOOTNOTES:

[1.] For TJ's third annual message to Congress, Oct. 17, 1803, see Ford, VIII, pp. 266-7)

[3.] TI's message announced the acquisition of territory by treaty from the Kaskaskia Indians; see

Ford, VIII, pp. 269-70.

[4.] TJ accepted JM's suggestion to omit any discussion of Indian treaty requirements to maintain a Roman Catholic priest, leaving the stipulations in the treaty to "the competence of both houses.... as soon as the senate shall have advised its ratification"; see ibid.

Source of Information:

James Madison to Thomas Jefferson, Washington, Oct. 1, 1803, Notes for annual message, Oct. 17, 1803: alterations and additions, etc.[1.],

The Republic of Letters, the Correspondence between Thomas Jefferson and James Madison, 1776-1826, Edited by James Morton Smith, Vol. II, 1790 -1804, W. W. Norton & Company, New York, London, (1995) pp 1297-98)

Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared.

In those writings one will find the following little jewel:

"The remaining part of the clause declares, that 'no religious test shall ever be required, as a qualification to any office or public trust, under the United States.' This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any test or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government."

Commentaries on The Constitution of The United States, by Supreme Court Justice Joseph Story, Vol III, (1833) pg 705)

Volume 2 of Story's Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way:

"Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

"The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent [472 U.S. 38, 105] any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." (Footnotes omitted.)

Joseph Story's ongoing war with Thomas Jefferson


Joseph Story's Commentaries of the Constitution


Two Views: James Madison's and Joseph Story's


Subsequently, when Madison sponsored the amendments that became the Bill of Rights, he explained that the Establishment Clause would quell public fear that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform." 62 Because Christian religions were the only faiths that could pose this threat, and the only religions established in any states, the amendment was written primarily with Christianity in mind.

In 1833, Justice Joseph Story published constitutional commentaries that were hailed, when they first appeared, as the authoritative reference on the American Constitution that Sir William Blackstone's volumes were on English common law. Story's study of the period of ratification convinced him that "the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship.''63 Under this constitutional mandate, Story found that an affirmative "duty of supporting religion, and especially the Christian religion" was contemplated by the amendment so long as no attempt is made "to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires."64 He contended that any "attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."65 The real object of the amendment," Story concluded, "was not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which s uld give to an hierarchy the exclusive patronage of the national government."66 Under this formulation, states were free to establish an official religion and go quite far in support of that faith. While noting that in different states Episcopalians, Presbyterians, Congregationalists, and Quakers were predominant, Story said the amendment prevented the danger of "perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendant if the national government were left free to create a religious establishment."67

Today, this viewpoint would engender the "universal disapprobation, if not universal indignation" Story claimed the modern position would have fostered at the time of ratification. Yet, as originalists would have us do, we would have to reestablish that two-centuries-old understanding, to the exclusion of all that has passed in the interim, and permit Christianity to have a favored position over other religions as long as no one is forced to profess faith in it and no religious persecution is sanctioned by government acts. Even with the incorporation doctrine, applying the First Amendment's tenets to the states, particular religions would be allowed to be fostered by a state with the same provisos against persecution and forced faith. It would not matter that by 1833, the same year Story's commentaries were published, the last of the states had eliminated mandatory support for Christian education by popular referendum. It would not matter that immigrants came to the United States generations ago to pursue the promise of a religious freedom that accords with modern understandings, not the popular understandings of 1791 described by Story. It would not matter that reason tells us the fear of religious strife between Christian religions that motivated the ratifiers of the First Amendment will also occur between the Christian and other religions and must equally be guarded against. It would not matter that a return to yesteryear's intentions would work. oral monstrosity of the sort that the Court in the 1819 Sturges v. Crowinshiel 68 decision claimed the courts must avoid in construing the Constitution.

For the modern Court to declare it constitutionally permissible for a state to establish an official religion as long as it also adopted a nondiscrimination policy toward other religions would properly bring opprobrium on the Court and a movement for a constitutional amendment to correct the injustice. To originalists, this is the only legitimate way to change original understandings. The absurdity of that position, not only for the unnecessary strife it would engender and the blow it would make to the Court's legitimacy in public eyes, is yet more apparent when you consider the language of a new religious freedom amendment. Undoubtedly, it would rely on the existing language, barring an "establishment of religion" and guaranteeing the "free exercise" of religion, except that the language would now be supported by modern intentions. To repass an existing amendment in order to incorporate, extratextually, modern understandings undermines the durability of the Constitution and its promises of freedom, substituting in its place a transitory document that might more properly be put to a referendum every generation to incorporate each new generation's views. To do so would undermine the rule of law because the Constitution would then reflect only current morality and not values that are enduring. Instead of looking as carefully as we do to intergenerational truths, new truths of temporary tenure and unconcerned with past understandings will always be available. To allow the incorporation of generational understandings, moreover, would encourage the use of politically correct fads of concededly little long-term appeal because of the knowledge that they would be replaced within a brief time span.

That is not the means to modern understandings. One strength of judicial process is the fullness of its examination of what went before and how it affects both the present and the future. Before his appointment to the Supreme Court, Justice Benjamin Cardozo observed that the law is conscious of its own absurdity when it preserves the rubric of a vanished era. Judges have made worthy, if shamefaced efforts, while giving lip service to the rule, to riddle it with exceptions and by distinctions reduce it to a shadow . . . . The law will ve cause for gratitude to the deliverer who will strike the fatal blow.69

Indeed, method and principle underlie a means through which judges can avoid the manifest injustices occasionally dictated by originalism.

63. J. Story, Commentaries on the Constitution of the United States &#sect; 988, at 700 (1987 reprint of 1833 ed. ).

64. Id. &#sect; 990, at 700-01.

65. Id. &#sect; 988, at 700.

66. Id. &#sect; 991, at 701.

67. Id. &#sect; 992, at 702.

68. 17 U. S. (4 Wheat.) 122 (1819).

69. B. Cardozo, The Nature of the Judicial Process 155-56 (1921).

Source of Information:

The Bill of Rights & the Politics of Interpretation. Robert S. Peck, West Publishing Company, (1992) pp 174 -76


Joseph Story remained a firm believer in and supporter of religious establishments. He fought disestablishment in Mass till the bitter end.

Thomas Cooley's eminence as a legal authority rivaled that of Story.

But, does either Story (who wrote his Commentaries on the Constitution in 1833) or Thomas M. Cooley (who wrote his The General Principles of Constitutional Law in the United States of America in 1880) rival James Madison?


" . . . You can't understand a phrase such as "Congress shall make no law respecting an establishment of religion" by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). . . . "
SOURCE: Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)


Interesting enough, SIX men were responsible for the wording of the Religious clauses of the Bill of Rights -- SIX men, gathered together in unrecorded committee meetings. No notes were taken, since it was a joint House/Senate committee, of any debates or any votes. From the House we had Madison, Sherman, and Vining, from the Senate we had Ellsworth, Carroll, and Paterson

Madison headed up the House group and Ellsworth headed up the Senate group The wording that the House had previously agreed upon but which had been rejected by the Senate was:

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

The wording that the Senate had previously agreed upon but which had been rejected by the House was:

"Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion,"

The SIX men, in secret committee framed the following:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; "

As far as history records, only one of those six men ever wrote anything with regards to what those first ten words meant or was intended to mean. That man was James Madison. In one of his very earliest explanations he had this to say with regards to its meaning:

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


The article, "Two Views: James Madison's and Joseph Story's" states the opposing points of view between the strict separationist, James Madison and the accommodationist Joseph Story

For further clarification of Madison's position, see:

James Madison on Separation of Church and State: Direct references to separation to be found in the writings of James Madison

These are some of Madison's direct references to the issue:

"To the Baptist Churches on Neal's Greek on Black Creek, North Carolina I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have other wise discharged my duty on the occasion which presented itself"

Source of Information:

Letter to Baptist Churches in North Carolina, June 3, 1811. Letters And Other Writings of James Madison Fourth President Of The United States In Four Volumes Published By the Order Of Congress, Vol..II, J. B. Lippincott & Co., Philadelphia, (1865) pp 511-512.

"The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State."

Source of Information:

Excert of a letter to Robert Walsh from James Madison. MARCH 2, 1819 Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 121-126. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83.


"Strongly guarded as is the separation between religion and Gov't in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents' already furnished in their short history"

Source of Information:

Excerpt from Madison's Detached Memoranda. This document was discovered in 1946 among the papers of William Cabell Rives, a biographer of Madison. Scholars date these observations in Madison's hand sometime between 1817 and 1832. The entire document was published by Elizabeth Fleet in the William and Mary Quarterly of October 1946.


"Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together"

Source of Information:

Excerpt of letter to Edward Livingston from James Madison, July 10, 1822. Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. Vol. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83.


"I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others".

Source of Information:

Letter written by James Madison to Rev. Jasper Adams, September, 1833. Writings of James Madison, edited by Gaillard Hunt, [not sure what the volume number is but have enough information presented here to locate the letter] microform Z1236.L53, pp 484-488.


Excerpts from James Madison's Autobiography


In Virginia, on the other hand where the Anglican establishment had been less generous to dissenters than the Congregationalists of New England, it was rather the radical separationist view which triumphed under the leadership of Madison and Jefferson. And this Virginia struggle was the immediate background of the drafting of the First Amendment.

Source of Information:

"John Witherspoon on Church and State," by James Hastings Nichols. Journal of Presbyterian History, 42, (1964), pp 171-73.


It is interesting that Rehnquist and/or his clerk doesn't mention any of the above:

Cooley stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say:

"But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge

All must acknowledge? All? Really?

the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination [472 U.S. 38, 106] in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. . . ." Id., at *470-*471.

Cooley added that

"[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction will incline it also to foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." Id., at *470.

Unfortunately, Mr. Cooley wasn't aware of the following. It wasn't rediscovered until the 1940s. However, Rehnquist was (or should have been) aware of it.

Excerpts from James Madison's "Detached Memoranda"; (written after 1817)

Background on Madison's "Detached Memoranda:"

What is significant with respect to the date of its writing is that Madison's "Detached Memoranda" interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison's own "Memorial and Remonstrance, or on Jefferson's Virginia Statute for Religious Freedom, although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.

The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government.

Source of Information:

Pfeffer, Leo, "Madison's 'Detached Memoranda': Then and Now," The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.


Mr. Cooley never sat on the United States Supreme Court. He was a scholar and deserves all the respect that a scholar should receive. At the time of his writings on the Constitution, there had been few, if any, Establishment Clause cases brought before the United States Supreme Court.

Even scholars frequently use previous treatments that have been given constitutional clauses, principles and concepts by the courts to help them come to understand and form opinions and conclusions.

As far as I have determined, no courts have used Cooley's opinions in reaching their decisions with regards to the religious clauses of the Bill of Rights.

One thing the modern day conservatives will not like about Cooley is he stated that he felt the wording of the 14th Amendment was such that it could allow it to be applied against the states in matters of religion.


1898

The General Principles of Constitutional Law in The United States

Section L-- Religious Liberty

The Constitution -- The Constitution as originally adopted declared that "no religious test shall ever be required as a qualification to any office or public trust under tile United States." By amendment it was further provided that "Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof," Both these provisions, it will be seen, are limitations upon the powers of Congress only. Neither the original Constitution nor any of the early amendments undertook to protect the religions. liberty of the people of the States against the action of their respective state governments. ***The fourteenth-amendment is perhaps; broad enough to give some securities if they should be needful.***(emphasis added)

Source of Information:

The General Principles of Constitutional Law in The United States of America, By Thomas M. Cooley, LL.D., Third Edition By Andrew C. McLaughlin, A.M., L.L B. [Professor of American History, University of Michigan] Little, Brown, and Company 1898, pp 224-227.


It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning:

Really? How about this:

Of the eleven states that ratified the First Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion and violated its free exercise.(78) Some had done so from their earliest foundations; some arrived at that stance after the American Revolution. The Maryland constitution permitted a general assessment to support religion, but Marylanders firmly rejected a proposal to enact one. Of the ratifying states, only Vermont and New Hampshire adhered to the view that states could or should provide for tax-supported religion. On a whole range of other applications, however, Americans inherited traditions of government interference in religious matters.

Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment. Thomas J. Curry. Oxford University Press. (1986) pp 202 - 222.


1771

In 1771 Thomas B. Chandler, an Anglican minister in New Jersey involved in a heated dispute with Boston Congregationalist minister Charles Chauncy, wrote that if Chauncy were going to continue to change the meaning of the word "establishment," he ought to "publish a Glossary, wherein the singularities of his Phraseology are carefully explained."' Given the usage of the word in colonial America, Chandler's suggestion was eminently practical. The ambiguities of "establishment" in the colonies stemmed from such peculiarly American situations as that in New York, where the minority Anglicans claimed to be the establishment, or in New England, where Congregationalists -- Dissenters within the Empire -- in fact constituted the established church.

Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment. Thomas J. Curry. Oxford University Press. (1986) pp 105 - 107.


it forbade establishment of a national religion,

Which was something that had never existed here and was very unlikely to happen:

"In recent discussions of religious freedom and Church-State separation in the United States attention has been so much centered constitutionally on the Bill of Rights that the importance of this Provision in the original Constitution as a bulwark of Church-State separation has been largely overlooked. As a matter of fact it was and is important in preventing religious tests for Federal office--a provision later extended to all the states. It went far in thwarting any State Church in the United States; for it would be almost impossible to establish such a Church, since no Church has more than a fifth of the population. Congress as constituted with men and women from all the denominations could never unite in selecting any one body for this privilege. This has been so evident from the time of the founding of the government that it is one reason why the First Amendment must be interpreted more broadly than merely as preventing the state establishment of religion which had already been made almost impossible."

Source of Information:

Church And State in The United States, Volume I, Anton Phelps Stokes, D.D., LL.D, Harper & Brothers Publishers (1950) page 527.


Edmund Randolph of Virginia pointed out that the multiplicity of sects would prevent "the establishment of any one sect, in prejudice to the rest.". Patrick Henry, insisting on the need for an amendment on religion, stated that "no particular sect or society ought to be favored or established, by law, in preference to others."16 p. 197

In Connecticut, Oliver Ellsworth, replying to criticisms of the Constitution, pointed out that Americans enjoyed full religious liberty unlike other countries, where "one religion" was "established by law." At his state's Convention, he stated that given the prevalence of knowledge and liberty, the United States would never "be disposed to establish one religious sect, and lay all others under legal disabilities. "22

pp. 197-98

This description of establishment presents a paradox to the modem historian. By emphasizing the "exclusive" favoring of "one particular 'sect," Americans appeared to draw a careful distinction between such an exclusive establishment and a non-exclusive establishment or favoring of several or all sects. However, during the revolutionary period, the only serious Church-State conflicts had to do not with e exclusive state preference for a single religion, but with proposals for non-preferential state support of many religious groups. This issue gave rise to bitter struggles in New England, in Maryland, and in Virginia where Madison led the opposition. p. 198

Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment. Thomas J. Curry. Oxford University Press. (1986)


MYTH: The First Amendment's religion clauses were intended only to prevent the establishment of a national church.

FACT: If all the framers wanted to do was ban a national church, they had plenty of opportunities to state exactly that in the First Amendment. In fact, an early draft of the First Amendment read in part, "The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established...." This draft was rejected. Following extensive debate, the language found in the First Amendment today was settled on.

The historical record indicates that the framers wanted the First Amendment to ban not only establishment of a single church but also "multiple establishments," that is, a system by which the government funds many religions on an equal basis.

A good overview of the development of the language of the First Amendment is found in scholar John M. Swomley's 1987 book Religious Liberty and the Secular State. Swomley shows that during the House of Representatives' debate on the language of the religion clauses, members specifically rejected a version reading, "Congress shall make no law establishing any particular denomination in preference to another...." The founders wanted to bar all religious establishments; they left no room for "non-preferentialism," the view touted by today's accommodationists that government can aid religion as long as it assists all religions equally. (The Senate likewise rejected three versions of the First Amendment that would have permitted non-preferential support for religion.)

Source of Information:

Thanks to Americans United for Separation of Church and State: Myths


and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English Language (1st ed. 1828).

The first American dictionary to link "establishment" to a church was Webster's 1828 edition, which was published almost forty years after the First Amendment was drafted. Webster supplemented the sparser 1806 edition by adding the following definition: "The episcopal form of religion, so called in England.

[Referring to this new 1828 definition, Justice Rehnquist, in support of his argument that the word "establishment" "had a well-accepted meaning," ignored Webster's 1806 edition and wrongly stated that the 1828 edition was "the first American dictionary." Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J. dissenting).]

The frequency of the usage "establishment-. without any reference to religion, and the relative infrequency of its use in regard to religion, certainly suggests that the word was not a term of art bearing a technical definition.

The term "establishment," when applied to a religion, nevertheless was controversial in the eighteenth century. An examination of several disputes where the meaning of the term was debated suggests that by 1789 the word was more of a term of opprobrium than a description of any particular church-state relationship.

Source of Information:

A Standard for Repair, The Establishment Clause, Equality, and Natural Rights. By T. Jeremy Gunn. Garland Publishing, Inc. N. Y. (1992) p. 71-73.


The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.

. . . [Rehnquist] has failed to indicate which clause of the Constitution might empower Congress to extend general benefits to religion or to Christianity. None does.

Source of Information:

The Establishment Clause, Religion and the First Amendment, Leonard W. Levy, Second Edition, Revised, University of North Carolina Press, (1994) p. 114


(1) The constitution is a constitution of enumerated powers

(2) The nonpreferential interpretation seems persuasive if one can ignore or forget the fact that the First Amendment, no matter how parsed or logically analyzed, was framed to deny power, not to vest it.. The fundamental defect of the nonpreferential interpretation is that it results in the unhistorical contention that the First Amendment augmented a nonexistent congressional power to legislate in that field of religion. The nonpreferential interpretation also seems persuasive if one can also ignore or forget the fact that neither Christianity nor Protestantism was ever a state church. The nonpreferentialists, having a tim ear for history, call Christianity or Protestantism one religion as if one religion were the equivalent to one Church, as in the term "state church." Invariably they end up with "state church" as the definition of an establishment of religion.6 The nonpreferentialists effort results in the proposition that government aid to religion without hint of discrimination would not to violate the Establishment Clause. Supposedly the legislative history of the Establishment Clause provides proof of the non preferential thesis..

6. Cord, Separation of Church and State, pp. 5. 6. 10; Malbin, Religion and Politics, p. 14

See also Dreisbach, Real Treat and Mere Shadow, p.65

Source of Information:

The Establishment Clause, Religion and the First Amendment, Leonard W. Levy, Second Edition, Revised, University of North Carolina Press, (1994) p. 115.


It does not.

(3) Apart from the matter of a omission of a test oath, concerns expressed throughout the states as to the possible impact of the new government on religious freedom were usually vague as to detail. They mentioned the danger that the government might use the Constitution's general welfare clause to menace Religious liberty, but only in a loose and general way.

"Timoleon" of New York did speculate that by way of a tax for e general welfare, the new government, in the absence of a declaration in "favor of the rights of conscience," might be able to suppress troublesome preachers, notwithstanding the state provision for liberty of religion. Both "An Old Whig" and "Deliberator" from Pennsylvania also opined that the national government might establish a uniformity of religion throughout the land by way of the same clause. Apart from these few clarifications, commentators enunciated the need for protection for the rights of conscience without elaboration."

Source of Information:

The First Freedoms, Church and State in America to the Passage of the First Amendment, Thomas J. Curry, Oxford University Press, (1986) pp. 196-97.


While it is true that there is wording acknowledging so called "implied powers, or a "elastic clause," general welfare, i.e. the necessary and proper clause, this was taken into account when during the debates on the proposed religious articles to the Constitution in August 1789, Madison said the following:

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.

Thus, Madison specifically stated that the words for such a amendment was to remove religion from any "implied powers," from the necessary and proper wording. In short, the amendment was to reinforce that separation that was embodied in the unamended constitution, to say loud and clear, keep your hands off religion.

Article VI, Paragraph III, the religious test ban did not grant any powers to the government with regards to religion. It placed a negative on the government. Nothing in that unamended constitution granted the government any authority or powers with regards to religion. As Madison had stated in the Virginia Ratification Convention, "There is not a shadow of right in the general government to intermeddle with religion."

The religious amendments did not give that power or authority. They reinforced that limit on the government by closing any possible loophole that the necessary and proper wording might have opened or left open. There was no power or authority in the unamended or amended constitution to accommodate any religion, any religious sect, denomination or religious society. No power or authority to be found in that document that could be used to claim that religion had a seat at the table of government or that the government could aid and/or support religion non-preferentially.

(4) Further comments along these lines:

No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.-- The Federalist No.44, 25 Jan. 1788 PJM10:424

The federal Government has been hitherto limited to the Specified powers, by the greatest Champions for Latitude in expounding those powers. If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once.--Madison to Henry Lee, 1 Jan. 1792 PJM 14:180

If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.--Madison to Edmund Pendleton, 21 Jan. 1792 PJM 14:195-96

If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

-- Madison's Speech in Congress, 6 Feb. 1792 PJM 14:223

I, sir, have always conceived-I believe those who proposed the constitution conceived; it is still more fully known, and more material to observe, those who ratified the constitution conceived, that this is not an indefinite government deriving its powers from the general terms prefixed to the specified powers-but, a limited government tied down to the specified powers, which explain and define the general terms.-- Madison's Speech in Congress, 6 Feb. 1792 PJM 14:221

It would be absurd to say, first, that Congress may do what they please; and then, that they may do this or that particular thing. After giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumerations which limits and details them, or they convert the government from one limited as hitherto supposed, to the enumerated powers, into a government without any limits at all.-- Madison's Speech in Congress, 6 Feb. 1792 PJM I4:221

But, after all, whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in the expounding the constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.--Madison's speech in Congress, 6 Apr. 1796 PJM16:295-96

So far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined; that in one very important case, even of commercial regulation and revenue, the power is absolutely locked up against the hands of both governments. A tax on exports can be laid by no Constitutional authority whatever.

The Report of 1800, 7 Jan. 1800 PJM 17:323

Serious danger seems to be threatened to the genuine sense of the Constitution, not only by an unwarrantable latitude of construction, but by the use made of precedents which can not be supposed to have had in the view of their authors, the bearing contended for, and even where they may have crept thro' inadvertence, into acts of Congress, and been signed by the Executive at a midnight hour, in the midst of a group scarcely admitting perusal, and under a weariness of mind as little admitting a vigilant attention. Another and perhaps a greater danger is to be apprehended from the influence which the usefulness and popularity of measures may have on questions of their constitutionality.

Madison to James Monroe, 27 Dec. 1817 DLC: Monroe Papers

To sum up, the necessary and proper wording of the U S Constitution was not meant to be a door or loophole through which anything could be done. Not only that but the religious clauses of the amendments were intended to reinforce church and state separation by removing religion from any application of those words.

There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson.

There is in fact a tremendous amount of historical foundation, of which only a small portion is being presented here.

Remember the rule of law laid down in Everson was:

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining [p*16] or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." Reynolds v. United States, supra, at 164.

In short, strict separation.

Do note that Rehnquist is focusing on the "wall" comment in Everson and not on the actual rule of law which is not complicated, i.e.

The "establishment of religion" clause of the First Amendment means at least this:

(1) neither a state nor the Federal Government can set up a church.

(2) Neither can pass laws which aid one religion,

(2a) aid all religions,

(2b) or prefer one religion over another.

(3) Neither can force

(3a) nor influence a person to go to

(3b) or to remain away from church against his will

(3c) or force him to profess a belief

(3d) or disbelief in any religion.

(4) No person can be punished for entertaining [p*16]

(4a) or professing religious beliefs

(4b) or disbeliefs,

(4c) for church attendance

(4d) or non-attendance.

(5) No tax in any amount,

(5a) large or small, can be levied to support any religious activities

(5b) or institutions, whatever they may be called,

(5c) or whatever form they may adopt to teach

(5d) or practice religion.

(6) Neither a state

(6a) nor the Federal Government can, openly or secretly, participate in the

(6b) affairs of any religious organizations

(6c) or groups,

(6d) and vice versa.


EVEN IF YOU DO AWAY WITH #5 which is what Rehnquist has been working to accomplish for 30 years, you still have all the other elements which would be and are still good law.


I would wonder how Rehnquist would explain the differences between the above and the items that follow: [emphasis added]

(1) "The remaining part of the clause declares, that 'no religious test shall ever be required, as a qualification to any office or public trust, under the United States.' This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any test or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government."

Source of Information:

Commentaries on The Constitution of The United States, by Supreme Court Justice Joseph Story, Vol III, (1833) pg 705.


(2) APRIL 14, 1800

THE GAZETTE

PHILADELPHIA

MONDAY EVENING, APRIL 14.

The condition of Church and State in America is such as to fill every considerate mind with the most unhappy sensations. In spite of that vanity and fastidiousness which led the Federal Convention, in founding their government, to preclude any connection, it will appear in the end, even by our own deplorable example, that a strict and indissoluble alliance of religion to government has been ordained in the nature of things. Though formally sundered by Constitution and laws; together they decline and together (it would seem) they are likely to perish.

Source of Information:

The Gazette of the United States, April 14, 1800 Jan 1, 1800 to Dec 31, 1800 MFILM N.S. 10953 AP2.05


MARCH 2, 1819

"The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State."

Source of Information:

Excert of a letter to Robert Walsh from James Madison. MARCH 2, 1819 Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. VOL. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 121-126. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83.


1817-1833

"Strongly guarded as is the separation between religion and Gov't in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents' already furnished in their short history"

Source of Information:

Excerpt from Madison's Detached Memoranda. This document was discovered in 1946 among the papers of William Cabell Rives, a biographer of Madison. Scholars date these observations in Madison's hand sometime between 1817 and 1832. The entire document was published by Elizabeth Fleet in the William and Mary Quarterly of October 1946.


One can check out the following for elaboration on some of the information here as well as additional information.

Study Guide for Separation of Church and State Indepth


Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been [472 U.S. 38, 107] true; in the 38 years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, 6 have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Tilton v. Richardson, 403 U.S. 672, 677-678, (1971); Wolman v. Walter, 433 U.S. 229, 236 (1977); Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

Blame justices siding with their political philosophies and being afraid of popular opinion if they stood steadfast and did their job based on law.

Whether due to its lack of historical support or its practical unworkability, the Everson "wall" has proved all but useless as a guide to sound constitutional adjudication. It illustrates only too well the wisdom of Benjamin Cardozo's observation that "[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." Berkey v. Third Avenue R. Co., 244 N. Y. 84, 94, 155 N. E. 58, 61 (1926).

It is interesting that Everson has been cited into the 90s.

But the greatest injury of the "wall" notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.

Actual intentions? What were those actual intentions? Where does one find these actual intentions?

The "crucible of litigation," ante, at 52, is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.

It should be frankly and explicitly abandoned. [472 U.S. 38, 108]

These statements are remarkable. Considering how one-sided and flawed Rehnquist's presentation of history in his dissenting opinion is. He is projecting his own guilt onto others.

What is even more remarkable is how, with these statements, he served notice of his intentions -- he has been faithful to those intentions for the past 18 years. With him, it's not about law, it's about his conservative, accommodationist philosophy.

See:

(1) Vouchers: Our Position


(2) Chief Justice William H. Rehnquist, the judicial leader of the nonpreferentialists [accommodationists], presented their view in a dissenting opinion of 1985 when he declared, wrongly, that the "well-accepted meaning" of the establishment clause is that it prohibited the establishment of a "national religion," which he defined as the official "designation of any church as a national one." The clause also "forbade preference among religious sects or denominations." But it created no wall of separation between government and religion, not even between church and state. "The Establishment Clause," Rehnquist wrote, "did not require government neutrality between religion and irreligion nor did it prohibit the federal government from providing nondiscriminatory aid to religion." 3

3. Wallace v. Jaffree, 472 U.S. 38, 98, 99, 106 (1985).

Source of Information:

The Establishment Clause, Religion and the First Amendment, by Leonard W. Levy, Second Edition, Revised. The University of North Carolina, Press, Chapel Hill, N C, (1994) p. 198, pp. 113-14.


(3) Stevens spoke for five members of the Court; Justice O'Connor, in a splendidly analytical opinion, concurred separately in the judgment. Rehnquist wrote fiction and passed it off as history, namely that the framers of the establishment clause merely intended to prohibit "the designation of any church as a 'national' one" and to prevent "a preference of one religious denomination or sect over others."44 One of Rehnquist's footnotes seems representative of the quality of his history. On behalf of the proposition that establishments of religion were "prevalent" during the late eighteenth and early nineteenth centuries, he mentioned four examples, one of which is "Rhode Island Charter of 16 3 3 (superseded r 842)." Rhode Island's first charter, dated 166 3, guaranteed religious liberty; neither as a colony nor as a state did Rhode Island ever have an establishment of religion.45

44. Wallace v. Jaffree,472 U.S. 38 (1985). pp. 99, 113.

45. Ibid., p. 99.

Source of Information:

The Establishment Clause, Religion and the First Amendment, by Leonard W. Levy, Second Edition, Revised. The University of North Carolina, Press, Chapel Hill, N C, (1994) p. 198.


(4) ADDITIONAL INFORMATION:

Establishment Clause

Representative Thomas Tucker on Church and State, September 1789

No Power to Congress over Religion: The "Elastic Clause" and the 1st Amendment

Congressional Debates: Religious Amendments, 1789

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

Jefferson's Bill for Religious Freedom (Passed December, 1785)

James Madison And Church-State Separation

Celebrating Madison at 250: Father of the Constitution opposed Tax Funding of Religion

What God Has Put Asunder: James Madison Quotes On Church And State

Some Thoughts on Religion and Law


The Court has more recently attempted to add some mortar to Everson's wall through the three-part test of Lemon v. Kurtzman, supra, at 614-615, which served at first to offer a more useful test for purposes of the Establishment Clause than did the "wall" metaphor.

Everson gave a rule of law with respects to the Establishment Clause. Lemon gave a test that could be applied to determine if any aspects of that rule of law had been broken. Lemon did not "replace" the rule of law given in Everson.

Generally stated, the Lemon test proscribes state action that has a sectarian purpose or effect, or causes an impermissible governmental entanglement with religion.

Lemon cited Board of Education v. Allen, 392 U.S. 236, 243 (1968), as the source of the "purpose" and "effect" prongs of the three-part test. The Allen opinion explains, however, how it inherited the purpose and effect elements from Schempp and Everson, both of which contain the historical errors described above. See Allen, supra, at 243. Thus the purpose and effect prongs have the same historical deficiencies as the wall concept itself: they are in no way based on either the language or intent of the drafters.

The secular purpose prong has proved mercurial in application because it has never been fully defined, and we have never fully stated how the test is to operate. If the purpose prong is intended to void those aids to sectarian institutions accompanied by a stated legislative purpose to aid religion, the prong will condemn nothing so long as the legislature utters a secular purpose and says nothing about aiding religion. Thus the constitutionality of a statute may depend upon what the legislators put into the legislative history and, more importantly, what they leave out. The purpose prong means little if it only requires the legislature to express any secular purpose and omit all sectarian references, because legislators might do just that. Faced with a valid legislative secular purpose, we could not properly ignore that purpose without a factual basis for doing so. Larson v. Valente, 456 U.S. 228, 262 -263 (1982) (WHITE, J., dissenting).

However, if the purpose prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or not, then most statutes providing any aid, such as [472 U.S. 38, 109] textbooks or bus rides for sectarian school children, will fail because one of the purposes behind every statute, whether stated or not, is to aid the target of its largesse. In other words, if the purpose prong requires an absence of any intent to aid sectarian institutions, whether or not expressed, few state laws in this area could pass the test, and we would be required to void some state aids to religion which we have already upheld. E. g., Allen, supra.

The entanglement prong of the Lemon test came from Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). Walz involved a constitutional challenge to New York's time-honored practice of providing state property tax exemptions to church property used in worship. The Walz opinion refused to "undermine the ultimate constitutional objective [of the Establishment Clause] as illuminated by history," id., at 671, and upheld the tax exemption. The Court examined the historical relationship between the State and church when church property was in issue, and determined that the challenged tax exemption did not so entangle New York with the church as to cause an intrusion or interference with religion. Interferences with religion should arguably be dealt with under the Free Exercise Clause, but the entanglement inquiry in Walz was consistent with that case's broad survey of the relationship between state taxation and religious property.

We have not always followed Walz' reflective inquiry into entanglement, however, E. G. Wolman, supra, at 254. One of the difficulties with the entanglement prong is that, when divorced from the logic of Walz, it creates an "insoluable paradox" in school aid cases: we have required aid to parochial schools to be closely watched lest it be put to sectarian use, yet this close supervision itself will create an entanglement. Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 -769 (1976) (WHITE, J., concurring in judgment). For example, in Wolman, supra, the Court in part struck the State's nondiscriminatory provision of buses for parochial school filed trips, because the state supervision [472 U.S. 38, 110] of sectarian officials in charge of field trips would be too onerous. This type of self-defeating result is certainly not required to ensure that States do not establish religions.

The entanglement test as applied in cases like Wolman also ignores the myriad state administrative regulations properly placed upon sectarian institutions such as curriculum, attendance, and certification requirements for sectarian schools, or fire and safety regulations for churches. Avoiding entanglement between church and State may be an important consideration in a case like Walz, but if the entanglement prong were applied to all state and church relations in the automatic manner in which it has been applied to school aid cases, the State could hardly require anything of church-related institutions as a condition for receipt of financial assistance.

These difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests.

Just in this rebuttal alone we are showing that there is a great deal of historical grounding to the concept of church state separation, strict church state separation. The problems that have arisen can be more directly traced to political philosophies of various justices over the years than historical problems.

Study Guide: Separation of Church and State - Indepth


The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize. Even worse, the Lemon test has caused this Court to fracture into unworkable plurality opinions, see n. 6, supra, depending upon how each of the three factors applies to a certain state action. The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results.

For example, a State may lend to parochial school children geography textbooks 7 that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. 8 A State may lend textbooks on American colonial history, but it may not lend a film on [472 U.S. 38, 111] George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. 9 A State may pay for bus transportation to religious schools 10 but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. 11 A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367 , 371 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U.S., at 241 . Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, 12 such as in a trailer parked down the street. Id., at 245. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, 13 but it may not provide funds for teacher-prepared tests on secular subjects. 14 Religious instruction may not be given in public school, 15 but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. 16

These results violate the historically sound principle "that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals [472 U.S. 38, 112] may elect to use those benefits in ways that `aid' religious instruction or worship." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 799 (1973) (BURGER, C. J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test.

Although the test initially provided helpful assistance, e. g., Tilton v. Richardson, 403 U.S. 672 (1971), we soon began describing the test as only a "guideline," Committee for Public Education & Religious Liberty v. Nyquist, supra, and lately we have described it as "no more than [a] useful signpos[t]." Mueller v. Allen, 463 U.S. 388, 394 (1983), citing Hunt v. McNair, 413 U.S. 734, 741 (1973); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). We have noted that the Lemon test is "not easily applied," Meek, supra, at 358, and as JUSTICE WHITE noted in Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980), under the Lemon test we have "sacrifice[d] clarity and predictability for flexibility." 444 U.S. at 662. In Lynch we reiterated that the Lemon test has never been binding on the Court, and we cited two cases where we had declined to apply it. 465 U.S., at 679 , citing Marsh v. Chambers, 463 U.S. 783 (1983); Larson v. Valente, 456 U.S. 228 (1982).

If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results, I see little use in it. The "crucible of litigation," ante, at 52, has produced only consistent unpredictability, and today's effort is just a continuation of "the sisyphean task of trying to patch together the `blurred, indistinct and variable barrier' described in Lemon v. Kurtzman." Regan, supra, at 671 (STEVENS, J., dissenting). We have done much straining since 1947, but still we admit that we can only "dimly perceive" the Everson wall. Tilton, supra. Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor. [472 U.S. 38, 113]

The true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S., at 671 -673; see also Lynch, supra, at 673-678. As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter and will only lead to the type of unprincipled decisionmaking that has plagued our Establishment Clause cases since Everson.

The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.

SEE ALL THE EVIDENCE PRESENTED ABOVE,

Also see

Study Guide: Separation of Church and State - Indepth

Footnotes not included.