The Constitutional Principle: Separation of Church and State
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No Power to Congress Over Religion:

The Separation Clause, Article IV Paragraph III

Where does one find the words, or idea of a separation of church and state in the Constitution?

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.

Source of Material:

Commentaries on the Constitution of the United States by Joseph Story Vol III, Page 705-709. De Capo Press Reprinted in American Constitutional and Legal History series, Da Capo Press NY 1970. Joseph Story's Commentaries were originally published in 1833)

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

Researched, compiled, and edited by Jim Allison and Susan Batte

Some examples showing that this principle was known in the period contemporary to the writing of the Constitution

  1. Representative Thomas Tucker on Church and State, September 1789

  2. MARCH 5, 1798

    MONDAY MARCH 5, 1798

    Take notice! Something very like this happened on the 4th of March, 1797. The American constitution has no relation to the Christian religion: Yet Mr. Adams, before taking his oath of office, made a long exordium to this purpose: viz, that, although the constitution makes no distinction in favour of the Christian religion, yet that he (Mr. Adams) in nominating to public offices would always have a special eye to that point. This truth was thereafter sent to the press.

    In July or August last, when the author of the history of 1796 or in plain terms, when Hamilton came to Philadelphia to vindicate his character by a confession of adultery, this identical and most Christian president invited him to a family dinner with Mrs. Adams. Such is his selection of company for the entertainment of his wife! Oh, Johnny! Johnny!

    Source of Information:

    General Aurora Advertiser, March 5, 1798. MFILM N.S. 12516, HF5862.A9 Old Dominion University microfilms room.

  3. MAY 9, 1798

    WEDNESDAY, MAY 9, 1798

    The other papers of this city have chosen to be silent this day, because the President has recommended a fast. We do not follow their example:

    Because there is nothing in the constitution giving authority to proclaim fasts .

    Because, if any such power can be considered, by implication, as vested by the constitution, it would rather belong to the Legislators.

    Because prayer, fasting, and humiliation are matters of religion and conscience, with which government has nothing to do, but which every individual is to attend to at such times, and in such manner, as he shall deem fit.

    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.

    Source of Information:

    General Aurora Advertiser, May, 9, 1798, Philadelphia, Penna. MFILM N.S. 12516, HF5862.A9, Old Dominion University microfilms room

  4. APRIL 14, 1800

    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, Old Dominion University microfilms room.

  5. The U.S. Constitution: "A Legal Barrier to Christian Theocracy"

    For example, by interpreting the framing of the Constitution as if it were a document inspired by and adhering to a Reconstructed version of Christianity, Reconstructionists avoid such inconvenient facts as Article VI of the Constitution. Most historians agree that Article VI, which states that public officials shall be "bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States," was a move toward the disestablishment of churches as official power brokers, and the establishment of the principles of religious pluralism and separation of church and state.

    Rushdoony writes however, that "The Constitution was designed to perpetuate a Christian order," then asks rhetorically: "Why then is there, in the main, an absence of any reference to Christianity in the Constitution?" He argues that the purpose was to protect religion from the federal government, and to preserve "states rights."25

    Such a view requires ignoring Article VI. Before 1787, most of the colonies and early states had required pledges of allegiance to Christianity, if not a particular sect, and that one be a member of the correct sect to vote or hold public office. Part of the struggle toward democracy at the time was the "disestablishment" of the state churches-the power structures of the local colonial theocracies. Thus the "religious test" was a significant philosophical matter. There was little debate over Article VI, which passed unanimously at the Constitutional Convention.26 Most of the states soon followed the federal lead in bringing their legal codes into the constitutional framework. Delaware was the first, in 1792, to bring its laws into conformity with this constitutional provision .27

    Gary DeMar, in his 1993 book America's Christian History: The Untold Story, also trips over Article VI. He quotes from colonial and state constitutions to prove they were "Christian" states. And of course, generally they were, until the framers of the Constitution set disestablishment irrevocably in motion. Yet DeMar tries to explain this away, claiming that Article VI merely banned "government mandated religious tests"-as if there were any other kind at issue. He later asserts that they did not intend disestablishment. 28

    By contrast, historian Garry Wills sees no mistake. The framers of the Constitution, he concludes, stitched together ideas from "constitutional monarchies, ancient republics, and modern leagues... but we (the U.S.) invented nothing, except disestablishment... No other government in the history of the world had launched itself without the help of officially recognized gods and their state connected ministers."29 Similarly, historian Robert Rutland, of the University of Virginia, writes that the United States was founded "on purpose in the bright light of history. The mere existence of the nation, "he observed, "was itself a kind of Declaration of Independence from the folk gods and religious and semi-religious myths that had always and everywhere surrounded governments and their rulers."30 .

    Disestablishment was the clear and unambiguous choice of framers of the Constitution, most of whom were serious Christian They were also well aware of the history of religious persecution carried out in the name of Christianity. The Protestant Reformation had a horrific record of persecution and religious warfare long before it provided the basis for religious liberty. Rutland notes that one ten of the population of Germany was killed during the Thirty Years War between 1616 and 1648, "the very time that the New England Puritans were settling in the New World in quest of their own religious liberty, and incidentally, their freedom to persecute in their own way."31 Similarly, neo-conservative scholar Michael Novak observes that the authors of the Constitution "had learned from the bitter experience of the religious wars that they had to treat well the matter religion. They had to do so in a practical way that would work." 32

    Even Gary North (who holds a Ph.D. in History) sees the connection between Article VI and disestablishment, and attacks Rushdoony's version of the "Christian" Constitution. North writes "In his desire to make the case for Christian America, he (Rushdoony) closed his eyes to the judicial break from Christian America: the ratification of the Constitution." North says Rushdoony "pretends" that Article VI "does not say what it says, and does not mean what it has always meant: a legal barrier to Christian theocracy," leading "directly to the rise of religious pluralism. 33 The long-term national goal," he concludes, "has to be the substitute of a Trinitarian national oath for the present prohibition against religious test oaths." 34

    25. R. J. Rushdoony, The Nature of the American System, The Craig Press, vi., 1965, pp., 2-3.

    26. Leo Pfeffer, Church, State and Freedom, Beacon Press 1967. p. 254 (revised edition).

    27. Albert J. Menendez, No Religious Test: The Story of Our Constitution's Forgotten Article, Americans United for Separation of Church & State, 1987. p. 11.

    28. Gary DeMar, America's Christian History The Untold Story, American Vision, 1993. pp. 88-89.

    29. Garry Wills, Under God: Religion and American Politics, Simon and Schuster, 1990. p. 383.

    30. Robert Rutland, "The Courage to Doubt in a Secular Republic," in James Madison on Religious Liberty, Prometheus Books, 1985. p. 208 [209].

    31. Ibid., p. 209.

    32. Michael Novak, ibid., p. 300.

    33. North, Political Polytheism, op. cit., pp. 681-685. A non-Reconstructionist advocate of the "Christian Nation" doctrine, Harold O. J. Brown, agrees with North. "America made a mistake in the year 1787. Officially, government . . . broke with Christianity," God and Politics, Four Views on the Reformation of Civil Government, Gary Scott Smith, ed. Presbyterian and Reformed Publishing, 1989. p. 132.

    34. North, ibid., p. 568.

    Source of Information:

    Frederick Clarkson, Eternal Hostility, The Struggle Between Theocracy and Democracy. Common Courage Press, Monroe, Maine (1997) 83-86.

  6. From Robert Rutland's "The Courage to Doubt in a Secular Republic:"

    The United States was the first modern nation founded on purpose in the bright light of history. The mere existence of the nation was itself a kind of Declaration of Independence from the folk gods and religious and semireligious myths that had always and everywhere surrounded governments and their rulers. Kings and queens were customarily crowned and hallowed by priests, bishops, cardinals, and popes. And they had good reason to want the odor of sanctity. Queen Elizabeth I, for example, made trouble for the author who wrote too freely describing the dethroning of her predecessor Richard II. Prudent divine-right sovereigns saw their protection lay in controlling the prying research of inquiring historians. They preferred simply to legitimize themselves by descent from the Trojans or from the gods.

    Some would say that religious liberty is probably the most distinctive and certainly one of the greatest contributions of the American experience to all human progress. Religious liberty in the United States is the product of not only the courageous personal humility of the Founding Fathers, as well as a by-product of some happy facts of American history. These are no less important because they appear obvious, but we're inclined to ignore them.

    First, since the founding of the nation-by an act of revolution and by the framing of a Constitution-was accomplished in a relatively brief time, living men and women could see that it was a product of their struggles, discussion, and handiwork, not the fiat of some sanctified, myth enshrouded past.

    Second, the nation was created from areas with diverse sects. Oddly enough, the fact that the colonies already had their several and various established churches contributed to this necessity. A federal nation was plainly not founded on an orthodox religious base. In Europe, the Protestant Reformation came as a disruptive force into the relatively monolithic world of the medieval church. In England, for example, Protestant orthodoxy was indelibly identified with national identity. In the American colonies, religious variety preceded political unity and had to be accommodated within it.

    Third, the diffusion of American colonial settlements with no one capital, the great distance of colonial urban centers from one another, and the oceanic separation from London or Rome, all made religious independence a fact of geography as well as of theology. So much of the population was at the edges and out beyond the range of the churches. One of the consequences of this was a different line of historical development of the relation between church and state, one which is so grand and so unique that we are perhaps inclined to ignore it. Over there, the development was generally from religious orthodoxy enforced by the state, to toleration-and only later to religious liberty. Historically speaking, of course, religious toleration is to be sharply contrasted to religious liberty. Toleration implies the existence of an established church, and toleration is always a revocable concession rather than a defensible right. In the United States, for the first time in modern Western history, the nation leaped from the provincial religious preference of its regions into religious liberty for the whole nation. The Founding Fathers despised the condescension that was implied in the very concept of toleration. That was a stage necessary for Old World nations, but not for our New World nation.

    Source of Information:

    Robert Rutland, "The Courage to Doubt in a Secular Republic," in James Madison on Religious Liberty, Prometheus Books, 1985. p. 208 [209]

  7. By Garry Wills, in Under God: Religion and American Politics:

    Despite the Protestant presuppositions of our culture (many of them unspoken), we have had a professed ideal of constitutional separation. That gave to religion an initial, if minimal, freedom from crippling forms of cooperation with the state. That, more than anything else, made the United States a new thing on the earth, setting new tasks for religion, offering it new opportunities. Everything else in our Constitution-separation of powers, balanced government, bicameralism, federalism-had been anticipated both in theory and practice. The framers aptly defended their handiwork with citations from Polybius and Montesquieu and Hume, and with references to the history of constitutional monarchies, ancient republics, and modern leagues. We combined a number of these features in a way that was suitable to our genius, as the drafters put it to what Montesquieu called the national esprit. But we invented nothing, except disestablishment.

    No other government in history had launched itself without the help of officially recognized gods and their state-connected ministers. It is no wonder that, in so novel an undertaking, it should have taken a while to sift the dangers and the blessings of the new arrangement, to learn how best to live with it, to complete the logic of its workings. We are still grappling with its meaning for us. But, at the least, its meaning has been one of freedom-the free exercise of the churches, free not only from official obstruction but from compromising favors. A burden was lifted from religion when it ceased to depend on the breath of princes, when it had nothing by way of political office with which to lure or tempt people into the fold or into the ministry. Thrown back on themselves, the churches were encouraged to search for their own essence, make their moral case on truly religious grounds, reward people in the proper spiritual currency. The contradictory goals of political advancement and religious vocation were not an omnipresent problem.

    Source of Information:

    Garry Wills, Under God: Religion and American Politics, Simon and Schuster, 1990. p. 383

  8. From "Charitable Choice, Remarks of Professor Marci Hamilton"

    I want to start by talking about James Madison, the Federalist Society's patron philosopher. He would not have thought that charitable choice was the right answer. Madison preached distrust of every social entity. By the time that he and the other framers arrived at the Constitutional Convention, the entire Convention was a feast of distrust. They did not trust organized religion. They did not trust the people. They did not trust the legislature. They did not trust the Executive. They did not trust the Judiciary. There was nothing in colonial or United States society that they found was worthy of absolute power. And so their answer was to divide power and disperse it throughout the society, and they did it through a number of mechanisms.

    They divided power among the three branches of the Federal Government, through Federal state separation of power, through Church state separation of power, a division which is recognized in the Constitution even before the First Amendment in the Religious Test Oath Clause.

    The framers did not have a utopian viewpoint. They did not believe that we can make it all work out by all working together. Rather they assumed that individuals will engage in inappropriate exercises of power, and that any entity that holds power will attempt to abuse it. This was especially true for Madison. There has been nothing since the drafting of the Constitution that would prove him wrong.

    Every structural entity that has held power in American society has at one time or another attempted to abuse it. There is not a position in any branch that we can point to and say: "Well, there is a position in government where those holding power never abuse their power." Just as the Framers expected, every position has been subject to the possibility and the temptation of abuse.

    Madison was quite consistent in his position of distrust, which he extended to organized religion. His argument was that not even three pence should go to the support of religious activities from the government. Why not three pence? Because it is the start of a slippery slope. If they receive three pence, they will ask for five pence. If they ask for five pence, they will ask for five more pence. Once the funding door is open, it is difficult to turn down such requests. Madison's answer to government funding of religion was "no." Throughout his Presidency, he was very consistent in arguing against financial support for religious activities including the funding of a Chaplain in Congress which he thought was plainly at odds with the Establishment Clause.

    At the end of his Presidency, Madison said the one issue that had not attained enough attention in the U.S. was the accumulation of assets and power by ecclesiastical bodies. The framer of the First Amendment understood that power is seductive and that it will induce any entity, including religious entities, to abuse their power. That is why we have not just a Free Exercise Clause but also an Establishment Clause.

    That leads us to the inevitable conclusion that certainly religious entities are capable of asking for more than the Constitution will let them have. They are capable of standing at the statehouse door and asking for more than they ought to and they are doing that in this era.

    I have just completed an article on transfers of wealth from government to religion. There has been no time in our history when we have had more opportunities and more instances where religion stands at the statehouse door or the Congress steps to ask for government money.

    Vouchers are just one example. Charitable Choice is another example. There is an expanding concept of tax exempt status. There are direct payments to faith healers through Medicare.

    Let's contrast Madison's viewpoint with our viewpoint today. Madison's viewpoint was to assume abuse of power to put limits on the exercise of power, and to enforce these limits.

    We are Pollyannas compared to the framers. We have never known religious oppression. The colonial society came over from Europe fully understanding the capacity of religion to suppress. It was religious entities that were the agents of suppression in Europe, not just governmental entities. There was no separation of church and state. The Framers, especially Madison, feared tyranny by religion as much as they feared tyranny by the government. But today we are Pollyannas and we assume that all religion is good. All religious programs will do good for our citizens. And, most important for Charitable Choice, religion is the answer when government fails.

    Charitable Choice is on its face an attempt by government to subsidize, not just proselytizing that is clearly unconstitutional but core mission activities. The core of services provided by the vast majority of religious entities that are engaged in Charitable Choice, are the mission activities of those religious entities. Charitable Choice programs pay not for secular activities, but rather mission: healing the sick, feeding the poor, ministering to the weak, ministering to the addicted. The merging of the boundaries between government and religion is the result of Charitable Choice.

    Source of Information:

    Excerpt from The Federalist Society For Law and Public Policy Studies. Charitable Choice, Remarks of Professor Marci Hamilton

  9. Dangers and Comments: "We the People;" Factions, Including Religious Sects, & Denominations; Local & State Governments; Majority v. Minority; Common Law and Other Things of Importance. Selections from James Madison, Benjamin Franklin, Thomas Jefferson, Congressional Debates and other sources.
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