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Absence of Delegated Power

Research and writing by Tom Peters

Beyond the historical improbability that the states would have approved a Constitution that delegated religious power to the federal government, there is the issue of finding such a delegation in the text of the Constitution. While scholars can point to delegations of federal power to, eg., lay and collect taxes (Art. I, sec. 8), make treaties (Art. II, sec. 2), and adjudicate disputes between the several states (Art. III, sec. 2), the Constitution is silent on matters of religion. The only exception to this silence is a separationist one: Article VI, paragraph 3 specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." If the framers had wanted the federal government to have the power to aid religion, they would have made that delegation of power explicit. Instead, the absence of delegated power in the area of religion is both obvious and, given the importance of religion in the colonies, striking.

Additionally, we note that it is not simply our opinion that the Constitution delegates no power over religion. On the contrary, this was the belief of both the framers of the Constitution as well as the ratifying conventions in the several states. Below we document, first, that the framers believed that the federal government was limited to delegated powers and, second, that the framers did not believe the Constitution delegated power over religion.

The limited nature of federal power:

The absence of delegated powers in certain critical areas of government was an important selling point for the Constitution. James Madison, the primary mover behind the First Amendment, for example sought to assuage the worries of the anti-federalists that the central government would expand beyond its Constitutional boundaries by arguing as follows:

Similarly, Constitutional historian Leonard Levy notes that the limited nature of the powers granted to the federal government in the Constitution was the primarily reason that the original Constitution did not contain a bill of rights:

No federal power over religion:

As Levy goes on to note, when the Constitution was submitted to the original thirteen states for ratification, this argument was used explicitly to defend the Constitution's lack of a guarantee of religious freedom. Levy summarizes some of the more important of these instances as follows:

Nor was this understanding of the Constitution limited to those who attended the Constitutional convention. Identical arguments were made by such non-attenders as Issac Backus of Massachusetts, James Iredell and Samuel Johnston of North Carolina, and Thomas Tucker of South Carolina (see Levy's "The Original Meaning of the Establishment Clause of the First Amendment," in James Wood, ed., Religion and State, pp. 46-53).

There is particular irony in Backus' defense of the Constitution; Backus was an ardent Baptist and a staunch opponent of religious establishment. If anyone were to press for additional guarantees of religious liberty in the Constitution it would have been Backus, but he declined to support any bill of rights. Clearly, he did not believe the federal government had any ability to establish religion.

Concludes Levy:

In summary, the framers believed that nothing in the Constitution that would allow the federal government to legislate with respect to religion. Rather, there was a widespread understanding that the states had delegated to the federal government only limited powers, and the federal government had no ability to go beyond them. Nothing in the text of the Constitution suggests otherwise. Hence, the historical record makes untenable the accomodationist conclusion that the federal government had the ability to aid religion, even in the absence of the First Amendment.

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