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Legislative History of the Religion Clauses

Research and writing by Tom Peters

If, as accomodationists want to argue, the purpose of the First Amendment was simply to bar the establishment of a state church, then one would expect to see evidence of this intent in the framing of the Amendment. In fact, the framers rejected versions of the First Amendment that would have done nothing more than bar the establishment of a state church. Rather, the framers adopted what is arguably the broadest of the proposed versions. (All information in this section is taken, unless otherwise indicated, from Leonard Levy, "The Original Meaning of the Establishment Clause of the First Amendment," in James E. Wood, ed., Religion and the State, pp. 43-83. For other discussions of the framing of the Amendment, see Thomas Curry, The First Freedoms, ch. 8, and Douglas Laycock, "'Nonpreferential' Aid to Religion: A False Claim about Original Intent," William and Mary Law Review, vol. 27, pp. 875-923. Additionally, please consult our online collection of all the mentions of the religion clauses recorded in the Annals of Congress and the Senate Journal for the first Congress.)

The House debates:

James Madison introduced the first version of the Amendment in the House of Representatives in 1789. The version read as follows: "The civil rights of none shall be abridged on the account of religious belief, nor shall any national religion be established, nor shall the full and equal rights of conscience in any manner or on any pretext be infringed." A House subcommittee immediately edited out the word "national" from Madison's proposal. A variety of additional versions were proposed and debated; none of these versions contained the word "national," or can be construed to bar only the establishment of a national religion. After further debate, the House approved the following, clearly broader, amendment: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." The first two thirds of the proposal are similar to our present version of the First Amendment; nothing in the proposal seems independently to authorize Congress to aid religion in any way.

The Senate debates

The House amendment went to the Senate in August. On September 3 the Senate took up three alternatives to the House language. The wording of these versions were as follows:

None of these versions passed muster. Instead, the Senate approved the following, much broader, language: "Congress shall make no law establishing religion." Six days later the Senate returned to the Amendment for the final time and approved the following: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." The Senate, in other words, rejected three versions of the First Amendment that would have codified the accomodationist position (i.e., the barring of a national church, and little else) in favor of a version that, while not as broad as the House proposal, was no longer narrowly focused on the establishment of a "sect," "society," or "denomination."

The conference committe debates:

Given the approval of different versions of the Bill of Rights by the House and Senate, a conference committee was created to resolve differences. The House members of the committee (headed by Madison) flatly refused to accept the Senate version of the religion Amendment, thereby "indicating that the House would not be satisfied with merely a ban on preference of one sect or religion over others" (Levy, "The Original Meaning of the Establishment Clause," p. 60). The Senate conferees then abandoned the Senate proposal, and the current version of the Amendment was adopted.

The history of the framing of the First Amendment, in other words, gives little support to the accomodationist position. The House never considered a version of the Amendment that codified the accomodationist position. The Senate did consider such versions, but rejected them. In their place, the Senate approved a more broadly drawn Amendment that barred the establishment of articles of faith and modes of worship without reference to religious denominations. The final version of the Amendment was even more broadly drawn than the House version in that it barred not only an establishment of religion, but even laws respecting the establishment of religion (i.e., wording that further guaranteed that the federal government could not interfere with the religious affairs of the states). Clearly, Congress intended the First Amendment to do more than simply bar the establishment of a state church.

Some accomodationist arguments:

In response to this evidence accomodationists sometimes argue that, since Madison's original version of the First Amendment barred the establishment of a "national" religion, and since the Senate debated language to this effect, the House and Senate debates are evidence that Congress only wanted a narrowly drawn amendment. But this gets the process of interpretation backward; it makes the defeated versions of the amendment controlling over the versions that passed! Nor do accomodationists apply this argument consistently; several of the proposed versions contained language guaranteeing the "rights of conscience," i.e., the right of people not to be taxed to support religions with which they disagree. Does this not indicate that the framers wanted to bar non-preferential taxation in favor of religion? It does if one applies accomodationist logic consistently but, for some odd reason, accomodationists rarely leap to this conclusion.

Another accomodationist response is to quote statements by anti-Federalists (i.e., those who opposed the adoption of the Constitution and the Bill of Rights) to the effect that the proposed religion amendment still allowed the federal government power to act in religious affairs. In particular, when the proposed Bill of Rights came before the Virginia legislature for ratification, a group of eight anti-Federalist state senators (none of whom were framers of the Constitution or the Bill of Rights, and all of whom opposed Jefferson's bill for religious freedom) argued that, even with the religion amendment in place, the government could still tax people for the general support of religion, and otherwise interfere with state establishments. But this is to accept the deeply tainted opinions of the opponents of the Constitution in favor of the statements of the framers themselves. As Levy notes (The Establishment Clause, pp. 108-111), the anti-Federalists were desperate to scrap the Constitution in favor of a system that left state sovereignty intact; their strategy was to reinforce, by any means at their disposal, the fear that the federal government was nothing more than a monster in waiting. How better to do this than to suggest the religion amendments left the monster free to pounce? One simply cannot turn to statements like these--statements that have no counterpart in any other state ratification debate, and which vest Congress with powers that no one else at the time was able to see--as an authoritative interpretation of the establishment clause. Levy's conclusion, we think, is apt:

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