The Federal Constitution and state constitutions prohibit an official state religion, with the result that most of the crimes which Blackstone describes in this chapter cannot exist in this country. Clearly a statute which would undertake to resurrect the crime of heresy would be unconstitutional. It is, of course, still true that religious organizations and activities may be protected against unlawful interference, so that one who disturbs a religious meeting or offends the religious sensibilities of other members of society may be guilty of a crime. Statutes providing for the observance of Sunday as a day of rest are still common, and a person may be guilty of a crime if he engages in. common work or other activity of a proscribed nature on this day.

What Blackstone describes in paragraphs 10 and 11, of course, are quite outside of the field of religion as such, and statutes today generally make this type of conduct wrongful, because such conduct offends common standards of morality, quite apart from any religious sanctions on the same subject

The use of the word "establishment" in the First Amendment is unique to constitutions of this period. No state constitution used this particular term, preferring to make specific provisions which prohibited tax monies for churches, discrimination against minority sects, and other measures which might establish a church. The use of the vague term in the Bill of Rights indicates the belief that the national government had no power in these specific areas, so that a general prohibition towards matters of religion was sufficient.

A. Uses of "Establishment"

The root term "establish" appears seven times in the Constitution prior to the Establishment Clause. In each case its use suggests creating, instituting. rendering permanent, or setting up.

The term was itself commonly used in the Constitutional Convention in Philadelphia long before the Establishment Clause was drafted. The word was used synonymously with "to set up,' "to create,' or "to institute." Despite its frequent use during the Constitutional Convention, the Records do not link the term to "religion." Sources used contemporaneously with the founding of the Constitution employ the word in a similar way. The Federalist referred to "the establishment of a navy," "the establishment of civil power," "the establishment of a fixed rule," "establishment of the militia," "the establishment of a government," "the establishment of the Constitution," "a military establishment," "establishment of the union," "establishment of courts," "establishment of new States," "establishment of tyranny," and "establishment of the writ of habeas corpus." Military establishments were referenced more than twenty times in the Federalist. Religious establishments were never mentioned.

The most widely read book in eighteenth-century America, the King James version of the Bible, used a variant of "establish" some eight score times. The word alternatively suggested two meanings: first, "to set up' or 'to organize, and second, "to make firm" or "to make permanent." Genesis chapter 9 thus spoke of establishing the covenant. Psalms 48:8 described the city that God establishes for ever, and in 2 Chronicles 9:8, God reminded his beloved Israel that He would establish them for ever. But it is not only God who establishes, for governments do as well. All the presidents of the kingdom, the governors, and the princes, the counsellers, and the captains, have consulted together to establish a royal statute, and to make a firm decree .... Daniel 6:7.

Using "establish" to mean "setting up" and "making permanent" similarly was reflected in the first English-language dictionaries.

Source of Information:
Samuel Johnson Dictionary of the English Language, 1766; John Ash, New and Complete Dictionary of the English Language, 1775 ; Thomas Sheridan, General Dictionary of the English language, 1780; Webster, Compendious Dictionary of the English Language, 1806; Noah Webster, American Dictionary of the English Language, 1828

In 1766, Samuel Johnson suggested five meanings of "establishment."

1. To settle firmly, to fix unalterably.

2. To settle in any privilege or possession; to confirm.

3. Settle regulation; form; model.

4. Foundation; fundamental principle.

5. Allowance; income; salary.

Johnson's first four definitions corresponded to the usage in the King James version: setting up something permanently or firmly. Johnson's fifth meaning was, however, new. An establishment was linked to money, although not in the context of taxation and without any particular suggestion that money was linked to a church or a religion. John Ash agreed that the word could mean "an allowance, a salary." Thomas Sheridan in 1780 and Noah Webster in 1806 concurred.

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.

To Establish : to make stable, firm and sure. To fix or settle.

Establishment : Settlement upon a foundation

"[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."

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.

Modern scholars sometimes fall into the late eighteenth-century American habit of equating "religion" with Protestant Christianity. Thus Anson Phelps Stokes, writing in 1950, noted that the Continental Congress "showed its interest in religion . . . [by] references to `God,'... to `Jesus Christ,' the `Christian Religion' ... and the `Free Protestant Colonies'." He concluded that Congress "saw the importance and the need of encouraging the religious spirit in the new nation, while at the same time avoiding favoritism to any denomination." However, a country wherein eleven of thirteen states restricted officeholding to Christians or Protestants hardly envisaged Catholicism or Judaism, not to mention Mohammedanism or any non-Christian group, as part of the "religion" to be promoted and encouraged either in the states or the Northwest Territory

Throughout the colonial period, many colonists, despite the plurality of sects, hoped that a common Protestant Christianity composed of pure biblical principles and uncorrupted by human impositions could come to be. In 1788 a commentator on the Constitution, using the pen name "Denatus," published an address in the Virginia Chronicle calling for the creation throughout the United States of academies

". . . for the education of youth in morality; the principles of the Christian religions without regard to sect, but pure and unadulterated as left by its divine author and his apostles.

To most Protestant Americans, the aspirations of "Denatus" were part reality in his lifetime and would become stronger in subsequent generations."

In 1787 the Delaware General Assembly declared, in the Preface to a law for the incorporation of churches, that "this General Assembly . . . [considered] it their duty to countenance and encourage virtue and religion by every means in their power, and in the most expeditious Manner." The Assembly's statement cloaked several unstated assumptions. Delaware required that officeholders proclaim a belief in Trinitarian Christianity, so the statement hatched the paradox that the state proclaimed a desire to promote religions whose adherents it refused to allow to participate in state government. Again, one resolves the contradiction by looking to the unspoken and often unconscious assumptions and limitations the citizens of Delaware attached to their concept of "religion." Further, the state decreed that public tax support was not to be a means for the support of religion.

That Americans during the revolutionary period did not always carry their principles into practice either in Church-State or other matters did not negate those principles. Except in a few instances, such as financial support of churches, they passed to subsequent generations the task of working out the consequences of the principle that the state had no competence in religious matters in a society wherein customs, mores, laws, and religion intertwined and wherein -the majority equated religion with Protestantism. However, the federal Bill of Rights prompted several states to begin to reconcile practice with principle Between 1 789 and 1792, Delaware, South Carolina, and Georgia abandoned religious tests for officeholding, and Pennsylvania modified its test to exclude only atheists.

The meaning of free exercise of religion and establishment of religion in 1789 must be examined within the historical matrix that produced these concepts. just as Puritan demands for religious liberty take on a different hue when seen against the pattern of Puritan belief, and just as the sweeping proclamations of anti-subscriptionists of the seventeenth century were not at all what they seemed on their face, so the meaning of the First Amendment must arise out of its historical context rather than from a literalist reading. It meant at least this: that each citizen had a right to the free exercise of his or her religion as long as it did not "break out into overt acts against peace and order." Further, the people of almost every state that ratified the First Amendment believed that religion should be maintained and supported voluntarily. They saw government attempts to organize and regulate such support as a usurpation of power, as a violation of liberty of conscience and free exercise of religion, and as falling within the scope of what they termed an establishment of religion.

"The First Amendment bans laws respecting an establishment of religion. Most of the framers of that amendment very probably meant that government should not promote, sponsor, or subsidize religion because it is best left to private voluntary support for the sake of religion itself as well as for government, and above all for the sake of the individual. Some of the framers undoubtedly believed that government should maintain a close relationship with religion, that is, with Protestantism, and that people should support taxes for the benefit of their own churches and ministers. The framers who came from Massachusetts and Connecticut certainly believed this, as did the representatives of New Hampshire, but New Hampshire was the only one of these New England states that ratified the First Amendment. Of the eleven states that ratified the First Amendment, New Hampshire and Vermont were probably the only ones in which a majority of the people believed that the government should support religion. In all the other ratifying states, a majority very probably opposed such support. But whether those who framed and ratified the First Amendment believed in government aid to religion or in its private voluntary support, the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion, and no state supported that power either."

Surrender of the Charter of New England, June 7, 1635

...did by the said Letters Patents incorporate, erect, ordain, name, constitute, and establish to be one body politick and corporate. in Deed and Name. By the Name of the Council of Plymouth aforesaid, in the said county or Devon for the planting, ruling, and governing of New England in America aforesaid. To have perpetual succession with divers other powers. priviledges, immunities, provisions, and restrictions for the propagation and establishing of true religion in those parts. and for the better regulating of the same plantations as in and by the said Letters Patents, do Reference Thereunto had more plainly and at large appeareth...

Charles I, Grant of the Province of Maine, April 3. 1639:

And for the better government of such our Subjects and others as att any tyme shall happen to dwell or reside within the said Provdence and Premisses or passe to or from the same our will and pleasure is that the Religion nowe professed in the Church of England and Ecclesiastical Governement nowe used in the same shalbee forever hereafter professed and with as much convenient speede as may bee setled and established in and throughout the said Province and premisses and every of them...

Charles 11, Charter of Carolina, March 24, 1663:

[Article 18:1 And because it may happen that some of the people and inhabitants of the said province, cannot in their private opinions, conform to the publick exercise of religion, according to the liturgy, form and ceremonies of the church of England, or take and subscribe the oaths and articles, made and established in that behalf, and for that the same, by reason of the remote distances of these places, will, we hope be no breach of the unity and uniformity established in this nation; our will and pleasure therefore is, and we do by these presents, for us, our heirs and successors, give and grant unto the proprietors] ... full and free license, liberty and authority, by such legal ways and means as they shall think fit, to give and grant unto such person or persons, inhabiting and being within the said province, or any part thereof, who really in their judgments, and for conscience sake cannot or shall not conform to the said liturgy and ceremonies, and take and subscribe the oaths and articles aforesaid, or any of them, such indulgencies and dispensations in that behalf, for and during such time and times, and with such limitations and restrictions as they, the said [proprietors]...shall in their discretion think fit and reasonable, and with this express proviso, and limitation also, that such person and persons, to whom such indulgencies and dispensations shall be granted as aforesaid, do and shall from time to time declare and continue, all fidelity, loyalty and obedience to us, our heirs and successors, and be subject and obedient to all other the laws, ordinances, and constitutions of the said province, in all matters whatsoever, as well ecclesiastical as civil, and do not in any wise disturb the peace and safety thereof, or scandalize or reproach the said liturgy, forms and ceremonies, or anything relating thereunto, or any person or persons whatsoever, for or in respect of his or their use or exercise thereof, or his or their obedience and conformity, thereunto.

Charles II, Charter of Rhode Island, July 8, 1663:

... and because some of the people and inhabitants of the same colonie cannot, in theire private opinions, conforms to the publique exercise of religion, according to the litturgy, formes and ceremonyes of the Church of England, or take or subscribe the oathe and articles made and established in that behalfe; and for that the same, by reason of the remote distances of those places, will (as wee hope) bee noe breach of the unitie and unifformitie established in this nation: Have therefore thought fit, and doe hereby publish, graunt, ordeyne and declare, That our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and theire owne judgments and consciences, in matters of religiousconcenments, throughout the tract of lande hereafter mentioned.

Charles 11, Charter of Carolina, June 30, 1665:

And because it may happen that some of the people and inhabitants of the said province cannot, in their private opinions, conform to the public exercise of religion according to the liturgy, forms, and ceremonies of the Church of England, or take and subscribe the oaths and articles made and established in that behalf; and for that the same, by reason of the remote distances of those places, will, as we hope, be no breach of the unity and conformity established in this nation; our will and pleasure therefore is, and we do, by these presents, for us, our heirs and successors, give and grant unto the said [proprietors] ... full and free licence, liberty, and authority, by such ways and means as they shall think fit, to give and grant unto such person and persons, inhabiting and being within the said province or territory, hereby or by the said recited Letters Patents mentioned to be granted as aforesaid, or any part thereof, such indulgences and dispensations, in that behalf, for and during such time and times, and with such limitations and restrictions, as they the said [proprietors] ... shall, in their discretion, think fit and reasonable: And that no person or persons unto whom such liberty shall be given, shall be any way molested, punished, disquieted, or called in question, for any differences in opinion, or practice in matters of religious concemments, who do not actually disturb the civil peace of the province, county or colony, that they shall make their abode in: But all and every such person and persons may, from time to time, and at all times, freely and quietly have and enjoy his and their judgments and consciences, in matters of religion, throughout all the said province or colony they behaving themselves peaceably, and not using this liberty to licentiousness, nor to the civil injury, or outward disturbance of others: Any law, statute, or clause, contained or to be contained, usage or custom of our realm of England, to the contrary hereof, in any-wise, notwithstanding.

And that the people of this State may forever enjoy the right of electing their own pastors or clergy, and at the same time that the State may have sufficient security for the due discharge of the pastoral office, by those who shall be admitted to be clergymen, no person shall officiate as minister of any established church who shall not have been chosen by a majority of the society to which he shall minister, or by persons appointed by the said majority, to choose and procure a minister for them ...