The Constitutional Principle: Separation of Church and State
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Study Guide for Separation of Church and State

Separation of Church and State: The Principle

Where can it be found, or can it be found, in the Constitution?

Written by Jim Allison


One might consider the following:

Directly, The (unamended) Constitution, Article VI, Section III

" but no religious test shall ever be required as a qualification to any office or public trust under the United States."


"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. The framers of the constitution were fully sensible of the dangers from this source, marked out in history of other ages and countries; and not wholly unknown to our own. They knew that bigotry was unceasingly vigilant in its own stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of civil power to exterminate those, who doubted its dogmas, or resisted its infallibility."

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


Then, indirectly the entire document (unamended constitution) as a whole.


See in general:

The Constitutional Principle: Separation of Church and State

and

Argument One: The phrase "separation of church and state" is not found in the Constitution

Argument Two: Jefferson's "separation of church and state" letter was hastily written and does not accurately represent Jefferson's view of church and state.

Argument Three: Thomas Jefferson actually said that the wall of separation between church and state was "one directional."

Jefferson's Danbury letter was written merely to assure Connecticut Baptists that the Constitution did not permit the establishment of a national denomination.

Jefferson's Danbury letter was written to address the Danbury Baptists' fears that the First Amendment might be misinterpreted.

See specifically:

then

Representative Thomas Tucker on Church and State, September 1789


In The (amended) Constitution, we have what is mentioned above, reinforced with Amendment I (1791):

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

No Power to Congress Over Religion. The Separation Clause, Article IV Paragraph III

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

Congressional Debates: Religious Amendments, 1789

and

Original Intent? Introduction

Original Intent? Part II

Original Intent? Part III

Original Intent? Part IV


next


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 Thomas Jefferson's third annual message to Congress, Oct. 17, 1803, see Ford, VIII, pp. 266-7)

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

Ford, VIII, pp. 269-70.

[4.] Thomas Jefferson accepted James Madison'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


and

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

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

"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."

(Letter to Robert Walsh, Mar. 2, 1819).

"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"

(Detached Memoranda, circa 1820).

"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"

(Letter to Edward Livingston, July 10, 1822).

"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".

(Letter Rev. Jasper Adams, Spring 1832).

"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"

(Letter to Baptist Churches in North Carolina, June 3, 1811).

followed by

Some Thoughts on Religion and Law

The ten part series of historical documentation:

The Constitution and Separation of Church and State: Part I

The Constitution and Separation of Church and State: Part II

The Constitution and Separation of Church and State: Part III

The Constitution and Separation of Church and State: Part IV

The Constitution and Separation of Church and State: Part V

The Constitution and Separation of Church and State: Part VI

The Constitution and Separation of Church and State: Part VII

The Constitution and Separation of Church and State: Part VIII

The Constitution and Separation of Church and State: Part IX

The Constitution and Separation of Church and State: Part X

Additional Information from a Variety of Sources:

From Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947): [Be sure to read the dissenting opinions in this case as well]

. . . The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 872, 146 A.L.R. 81, commands that a state 'shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.' These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression 'law respecting an establishment of religion,' probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. Whether this New Jersey law is one respecting the 'establishment of religion' requires an understanding of the meaning of that language, particularly with respect to the imposition of taxes. Once again, 4 therefore, it is not inappropriate briefly to review the background and environment of the period in which that constitutional language was fashioned and adopted.

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to [330 U.S. 1, 9] maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them. 5

These practices of the old world were transplanted to and began to thrive in the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or non-believers, would be required to support and attend. 6 An exercise of [330 U.S. 1, 10] this authority was accompanied by a repetition of many of the old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. 7 And all of these dissenters were compelled to pay tithes and taxes 8 to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters. [330 U.S. 1, 11] These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. 9The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. 10 It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, p ovided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia's tax levy for the support of the established church. Thomas Jeffer- [330 U.S. 1, 12] son and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. 11 In it, he

eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Madison's Remonstrance received strong support throughout Virginia, 12 and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous 'Virginia Bill for Religious Liberty' originally written by Thomas Jefferson. 13 The preamble to that Bill stated among other things that

'Almighty God hath created the mind free; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are [330 U.S. 1, 13] a departure from the plan of the Holy author of our religion who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . .; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern ...'

And the statute itself enacted

'That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened, in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . .'14

This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra, 98 U.S. at page 164; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342 , 10 S.Ct. 299, 300. Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. 15 Most of them did soon provide similar constitutional protections [330 U.S. 1, 14] for religious liberty. 16 But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. 17 In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect. 18 Some churches have either sought or accepted state financial support for

their schools. Here again the efforts to obtain state aid or acceptance of it have not been limited to any one particular faith. 19 The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religious and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion. 20

The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it [330 U.S. 1, 15] was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. 21 The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. 22 There is every reason to give the sam application and broad interpretation to the 'establishment of religion' clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina, 23 quoted with approval by this Court, in Watson v. Jones, 13 Wall. 679, 730: 'The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasions of the civil authority.'

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 entertain- [330 U.S. 1, 16] ing 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 from 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, 98 U.S. at page 164.

FOOTNOTES:

[ Footnote 4 ] See Reynolds v. United States, 98 U.S. 145 , 162; cf. Knowlton v. Moore, 178 U.S. 41, 89 , 106 S., 20 S.Ct. 747, 766, 772.

[ Footnote 5 ] See e.g. Macaulay, History of England (1849) I, cc. 2, 4; The Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1937) I, 60; Cobb, Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939) c. II; Sweet, Religion in Colonial America (194 ) 320-322.

[ Footnote 6 ] See e.g. the charter of the colony of Carolina which gave the grantees the right of 'patronage and advowsons of all the churches and chapels ... together with licence and power to build and found churches, chapels and oratories ... and to cause them to be dedicated and consecrated, according to the ecclesiastical laws of our kingdom of England.' Poore, Constitutions (1878) II, 1390, 1391. That of Maryland gave to the grantee Lord Baltimore 'the Patronages and Advowsons of all Churches which ... shall happen to be built, together with Licence and Faculty of erecting and founding Churches, Chapels, and Places of Worship ... and of causing the same to be dedicated and consecrated according to the Ecclesiastical Laws of our Kingdom of England, with all, and singular such, and as ample Rights, Jurisdictions, Privileges, ... as any Bishop... in our Kingdom of England ever ... hath had. ...' McDonald, Documentary Source Book of American History (1934) 31, 33. The Commission of New Hampshire of 1680, Poore, supra, II, 1277, stated: 'And above all things We do by these presents will, require and comand our said Councill to take all possible care for ye discountenancing of vice and encouraging of virtue and good living; and that by such examples ye infidle may be invited and desire to partake of ye Christian Religion, and for ye greater ease and satisfaction of ye sd loving subjects in matters of religion, We do hereby require and comand yt liberty of conscience shall be allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye Church of Engd shall be particularly countenanced and encouraged.' See also Town of Pawlet v. Clark, 9 Cranch 292.

[ Footnote 7 ] See e.g. Semple, Baptists in Virginia (1894); Sweet, Religion in Colonial America, supra at 131-152, 322-339.

[ Footnote 8 ] Almost every colony exacted some kind of tax for church support. See e.g. Cobb, op. cit. supra, note 5, 110 (Virginia); 131 (North Carolina ); 169 (Massachusetts); 270 (Connecticut); 304, 310, 339 (New York); 386 ( Maryland); 295 (New Hampshire).

[ Footnote 9 ] Madison wrote to a friend in 1774: 'That diabolical, hell-conceived principle of persecution rages among some. ... This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.' I Writings of James Madison (1900) 18, 21.

[ Footnote 10 ] Virginia's resistance to taxation for church support was crystalized in the famous 'Parson's Case' argued by Patrick Henry in 1763. For an account see Cobb, op. cit., supra, note 5, 108-111.

[ Footnote 11 ] II Writings of James Madison, 183.

[ Footnote 12 ] In a recently discovered collection of Madison's papers, Madison recollected that his Remonstrance 'met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law.' Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, in Fleet, Madison's 'Detached Memorandum,' 3 William and Mary Q. (1946) 534, 551, 555.

[ Footnote 13 ] For accounts of background and evolution of the Virginia Bill for Religious Liberty see e.g. James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia; the Baptists (1900); Cobb, op. cit., supra, note 5, 74-115; Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, op. cit ., supra, note 12, 554, 556.

[ Footnote 14 ] 12 Hening, Statutes of Virginia (1823) 84; Commager, Documents of American History (1944) 125.

[ Footnote 15 ] Permoli v. Municipality No. 1 of City of New Orleans, 3 How. 589. Cf. Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243.

[ Footnote 16 ] For a collection of state constitutional provisions on freedom of religion see Gavel, Public Funds for Church and Private Schools (1937) 148- 149. See also 2 Cooley, Constitutional Limitations (1927) 960-985.

[ Footnote 17 ] Test provisions forbade office holders to 'deny ... the truth of the Protestant religion,' e.g. Constitution of North Carolina 1776, XXXII, II Poore, supra, 1413. Maryland permitted taxation for support of the Christian religion and limited civil office to Christians until 1818, Id., I, 819, 820, 832.

[ Footnote 18 ] See Note 50 Yale L.J. (1941) 917; see also cases collected Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632, 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148.

[ Footnote 19 ] See cases collected Synod of Dakota v. State, 2 S.D. 366, 50 N.W. 632, 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148.

[ Footnote 20 ] Ibid. See also Cooley, op. cit., supra, note 16.

[ Footnote 21 ] Terrett v. Taylor, 9 Cranch 43; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333 , 10 S.Ct. 299; Cf. Reynolds v. United States, supra, 98 U.S. 162 ; Reuben Quick Bear v. Leupp, 210 U.S. 50 , 28 S.Ct. 690.

[ Footnote 22 ] Cantwell v. State of Conn., 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352; Jamison v. State of Texas, 318 U.S. 413 , 63 S.Ct. 669; Largent v. State of Texas, 318 U.S. 418 , 63 S.Ct. 667; Murdock v. Commonwealth of Pennsylvania, supra; West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R. 674; Follett v. Town of McCormick, 321 U.S. 573 , 64 S.Ct. 717, 152 A.L.R. 317; Marsh v. State of Alabama, 326 U.S. 501 , 66 S.Ct. 276; Cf. Bradfield v. Roberts, 175 U.S. 291 , 20 S.Ct. 121.

[ Footnote 23 ] Harmon v. Dreher, 1843, Speer's Eq., S.C., 87, 120.


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