Absence of Delegated Power

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:

The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce;... the powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people. (The Federalist, #45, emphasis ours)

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:

The members of the [Constitutional] convention did not oppose personal liberties; in the main they simply regarded a bill of rights as superfluous. They reasoned that the new national government possess only expressly enumerated powers, and no power had been granted to legislate on any of the subjects that would be the concern of a bill of rights. Because no such power existed, none could be exercised or abused, and therefore all provisions against that possibility were unnecessary. Of the many statements of the argument, the most widely publicized was that of Hamilton in The Federalist where he concluded simply: "for why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? (The Establishment Clause, p. 82; emphasis ours).

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:

James Wilson of Pennsylvania, in response to the allegation that there was no security for the right of conscience, asserted, "I ask the honorable gentlemen, what part of this system puts it in the power of Congress to attack those rights? When there is no power to attack it is idle to prepare the means of defense." Edmund Randolph of Virginia declared that "no power is given expressly to Congress over religion" and added that only powers "constitutionally given" could be exercised. Madison said, "There is not a shadow of right in the general government to intermeddle with religion" Richard Dobbs Spaight of North Carolina maintained: "as to the subject of religion...(n)o power is given to the general government to interfere with it at all. Any act of Congress on this subject would be an usurpation." Wilson, Randolph, Madison, and Spaight had attended the Constitutional Convention. Their remarks show that Congress was powerless, even in the absence of the First Amendment, to enact laws that benefited one religion or church in particular or all of them equally and impartially (The Establishment Clause, p. 83; emphasis in the original).

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:

The members of the Constitutional convention and Americans throughout the states shared a widespread understanding that the new central government would have no power whatever to legislate on the subject of religion, either to aid one sect exclusively or to aid all equally. Many contemporaries, especially in New England, believed that governments could and should foster religion, or at least Protestant Christianity. All agreed, however, that the matter pertained to the realm of state government and that the federal government possessed no authority to meddle in religious matters ("The Original Meaning," p. 53)

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.