In this section we look at the legal and historical basis for separating church and state. We present our case under two main headings:
The legal basis for separation:
The Constitution: The argument for the separation of church and state begins, not with the text of the First Amendment, but with the nature of the Constitution to which those amendments are attached. In this section we suggest that the Constitution, even in the absence of the First Amendment, grants no ability to the federal government to aid religion. We present two arguments to this effect: (1) that the principles of federalism, coupled with the widespread distrust of the central authority among the states, would have made it extremely unlikely that the states would grant to the federal government any power over religion, and (2) there is no evidence of such delegated power in the text of the Constitution.
- Federalism and state establishments
- Absence of delegated power
The Bill of Rights: In this section we present evidence suggesting that the religion clauses of the First Amendment are meant to be taken broadly. Again, we present two arguments: (1) there is no grammatical reason for reading the establishment clauses narrowly, and (2) Congress rejected versions of the First Amendment that would have instantiated the narrow reading.
- The grammar of the establishment clause
- Legislative history of the religion clauses
The historical basis of separation
Statements by the Framers: In this section we present evidence suggesting that the framers believed in separating church and state.
The Waning of Establishment: In this section we present historical evidence suggesting that separation of church and state was an accomplished fact of history by the mid-1800s.
- The history of state establishments [coming soon!]