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The Founders' Wall (?):

From today's New York Times Editorial:

With the religious right clamoring for more religious iconography in public spaces, it is understandable that the court might have shied away from a dramatic ruling that would have heightened what is already a strong antagonism toward the judiciary among some conservative groups. Ceding some ground on Ten Commandments displays may seem like a way to keep the peace. But as our country becomes more religiously diverse, putting one faith in a privileged position is likely to create more religious strife, not less. As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.

Its one thing to agree with the opinion and make an argument that the interpretation of the First Amendment should change with the ages, but no one seriously believes that it was the founders who "came up with the idea of a clear wall between church and state" do they?

Related Posts (on one page):

  1. Not the Founders' Wall.--
  2. The Founders' Wall (?):
Charlie (Colorado) (mail):
Uh, Todd, isn't the "wall" phrase a quote from Thomas Jefferson, or a close paraphrase? Is your point that the idea was pre-Founder?
6.28.2005 5:07pm
anonymous:
Indeed. See Jefferson's letter here: http://www.usconstitution.net/jeffwall.html
6.28.2005 5:20pm
Tumbling Dice (mail):
Charlie-

I don't speak for Todd, but perhaps he was making reference to the fact that TJ was not a part of the Constitutional Convention (he was in France at the time, I believe) and his now famous "wall" quote comes from either correspondence or his inaugural address - in either event, approx. 15 years after the drafting of the Constitution.

If memory serves, the "Founders" (here meaning those actually present and participating in the drafting of the Constitution) initially considered another amendment which was phrased similar to that of the First Amendment's "establishment clause" except that instead of "Congress shall make no..." it placed a similar prohibition on the various state legislatures. That other amendment, as we know, did not make it into the Bill of Rights, the Founders deciding instead to leave that question up to the individual states.

And of course there is the inconvenient fact that until the mid 1800's at least 2 (North Carolina and Massachusetts - though I could be wrong about which states) states had "official" state religions - with the impact being that certain state benefits were not enjoyed by those who were not members of the officially recognized church.

So, while I think it's fair to say that the Founders may have thought that generally it was best that governments favor no particular religion over another, the only consensus - based on what we know of legislative history - among the founders on this point was that the FEDERAL government should not favor one religion over another. To say that the Founders embraced and endorsed Jefferson's "Wall of Separation" is to do the kind of mental gymnastics and stretching that would lead one to think that the 14th amendment somehow makes the phrase "Congress shall not" applicable to state legislative bodies.
6.28.2005 5:23pm
jallgor (mail):
I assumed that Todd was referring to the fact that the idea of separating church and state was borrowed by our founding fathers and that the didn't "come up with the idea."
6.28.2005 5:27pm
William Baude (mail) (www):
Tumbling Dice:

Your argument would make more sense if Zywicki had written "framers" rather than "founders". Jefferson may not have written the Constitution, but he did write large chunks of the declaration of independence, did hold the first presidency after the first switch in party governance, and so on. It would be hard to exclude him from the category of those who "founded" the country.
6.28.2005 5:38pm
Tumbling Dice (mail):
William -

Point taken. However, I don't think Todd is incorrect in asserting that the Founders did not subscribe to TJ's "wall" view of the establishment clause, especially not as it has been interpreted over the last 50+ years (starting with the Lemon case?).

I think by saying that the "Founders" subscribed to this view, the NYTimes is trying to give the "wall of sep" viewpoint more of a historical foundation than it actually enjoyed.

Of course, he could have just meant that the founders didn't come up with the idea in the first place, whether applied to the federal government or state governments, which others have pointed out.
6.28.2005 5:59pm
Humble Law Student:
I believe the point is that if the founder's as a whole agreed with Jefferson's sentiment that the establishment clause erected "a wall of seperation" as it is currently understood today, there would be more, much more from the literature of the time. I mean, if his phrase (in how it is interpreted today) was meant to be a bedrock principle of the establishment clause. Wouldn't that phrase or something similar appear in other places? Not just one lonely letter. I mean, at least another few letters, or deliberations from the Conventions or the federalist papers, something ...
6.28.2005 6:04pm
William Baude (mail) (www):
HLS: I think you must be right about Zywicki's intent, although that would mean that Zywicki wrote carelessly above. Whether they put it into the Constitution or not, (some of) the Framers clearly "came up with the idea" of the wall of separation, which is what Zywicki asks.
6.28.2005 6:05pm
William Baude (mail) (www):
Oh, and Tumbling Dice:

It's worth noting that the Establishment Clause did not come out of the Constitutional Convention, but was a later amendment proposed by Congress. (The third one proposed, the first one ratified).
6.28.2005 6:07pm
Humble Law Student:
William Baude:
I think you must be right about Zywicki's intent, although that would mean that Zywicki wrote carelessly above. Whether they put it into the Constitution or not, (some of) the Framers clearly "came up with the idea" of the wall of separation, which is what Zywicki asks.



Yes, precise language is a must for discussions such as this. As a founder of our country, Jefferson certainly was influential. Of course, his direct influence on the "framing" of the Constitution is more debatable - as mentioned in numerous places.

Returning to my original point, much of the discussion is rather tangential to the issue. Because, regardless of what Jefferson really meant by his seperation line, if the framers and founders of our country really meant in the establishment clause what our modern SCOTUS has said it means. Then, you would have seen it repeated (or words similar) in other writings of the time and, more importantly, in the practices of their time. However, at most, what you have is that our founders in their other words and actions were weary of a particular religious denomination becoming the official state church. Rarely, if ever, did our founders and framers show hostility to religion in general. The debates focused on freedom of conscience and belief, but never does it appear that they even envisioned a freedom "from religion" - as the phrase seems to be interpreted today.


One could argue whether the words and actions of our founders and framers are correct for a modern pluaralistic society, but that is a different debate for another time. However, Zywicki is quite correct to criticize the NY Times for attempting to wrap the current SCOTUS interpretation of the establishment clause in a mantle of legimacy by appealing (falsely) to the founders for suport.
6.28.2005 6:29pm
Humble Law Student:
sorry for the two typos near the end
6.28.2005 6:31pm
Zywicki (mail):
I don't see the founders as believing that the First Amendment erected a wall, for the various reasons discussed. This isn't to say anything about whether the wall should be the policy; its just that it doesn't seem to me that is an accurate description of what the founders in general understood the Establishment Clause to mean. I have always understood Jefferson's views on this to be idiosyncratic, especially in light of all of the history that followed it. As Tumbling Dice says, I think the Times was trying to add a historical pedigree to a fairly anachronistic concept.
6.28.2005 6:35pm
Clayton E. Cramer (mail) (www):
If you want to know what the prevailing notion of the proper role of government and religion was at the time, go and read the documents. I've gathered a collection here that demonstrates that whatever you might want to believe, there is no evidence that anyone at the time time bought into the ACLU's notion of separation of church and state. Maryland prohibited non-Christians from holding office; Pennsylvania's revolutionary Constitution required (and still requires) officeholders to believe in one God and a future state of rewards and punishments; North Carolina's Constitution only allowed Protestants to hold office; Massachusetts' 1780 Constitution required the legislature to pass mandatory church attendance laws, and to use tax money to fund churches where churches couldn't raise the money voluntarily. Jefferson and Madison both allowed government buildings to be used for church services.
6.28.2005 6:46pm
Jon Rowe (mail) (www):
The problem with many of Clayton Cramers examples, for instance:

-- Maryland prohibited non-Christians from holding office; Pennsylvania's revolutionary Constitution required (and still requires) officeholders to believe in one God and a future state of rewards and punishments; North Carolina's Constitution only allowed Protestants to hold office; Massachusetts' 1780 Constitution required the legislature to pass mandatory church attendance laws, --

is that they are precisely the kind of COERCIVE establishments that there is good historical reason to believe the Fourteenth Amendment forbids. Even Justice Thomas in his dissent argues that if anything about the Establishment Clause is to be incorporated at all, it is proscriptions against THOSE types of things, which he labels "coercive establishments," that is establishments which cause some sort of tangible harm, above and beyond merely "being offended."

Moreover, Jefferson, Madison, and probably Washington, Adams, Mason and many others thought these practices to be repulsive violations of the natural rights of conscience. That's why they protected against such violations in Art. VI of the unamended Constitution.

Under principles of Federalism, the Federal government was initially powerless to prevent such violations of natural rights, just as it didn't give itself the power to abolish slavery. But certainly the 14th Amendment changed all of that.

The more apt question, as Justice Thomas points out, is what happens when you have government merely acknowledging a religious point of view, without causing any sort of tangible harm other than mere offense at the point of view.
6.28.2005 7:08pm
steveh2 (mail):
I don't think it's fair to use the word "offended" to describe the response of non-Christians to public officials' use of their public offices to establish their own personal religious views as the official religious belief of the government.

I think "excluded" is a more accurate term. I do not feel offended at the fact that many people believe in the Ten Commandments, or that people want to pray to this alleged "God" fellow.

But when a public event includes a prayer to this alleged God, I am excluded from that portion of the event, and the basis for my exclusion is my religion (or lack of same). When my local public school posts a sign saying "In God We Trust," I am by definition excluded from whatever "we" they are referring to, since I do not trust in this God.

Contra Jon Rowe, this is not about "mere offense at the point of view." It's about governmental discrimination based on one's religious beliefs.
6.28.2005 7:20pm
vepxistqaosani (mail) (www):
Steveh2,

Huh? How can you feel "excluded" by an official's statement of belief? If a neighboring public school (not yours) put up a sign saying, "Our students are the best" (or, more likely, "Our student's are the best"), would you be excluded?

You are no more excluded from a public event where a prayer is offered than you would be if you were tone deaf and music were played. (Which may, after all, be a new offended class some bright lawyer might represent someday.)
6.28.2005 7:35pm
Jon Rowe (mail) (www):
Steveh2,

My mind still isn't made up on this. But you'll have to convince me that you or I (b/c I don't believe the TC were divinely given by God) are actually suffering discriminatory harm, as opposed to being merely offended by something the government says, before it raises a federal issue in my mind.
6.28.2005 7:55pm
steveh2 (mail):
I am not excluded by a particular official's statement about what he personally believes. I have no problem if in his address tonight, George Bush says that he believes in God. If it helps, more power to him. Similarly, if a valedictorian wishes to use his or her alloted time to give a prayer during his or her valedictory address, that's fine, too, because that's the valedictorian's own speech.

But when the government itself is the actor, I see it differently. When the government is conducting an activity such as prayer to a God, that activity by definition excludes those who do not pray.

I agree that other activities can be exclusionary, such as concerts. But there are no constitutional principles suggesting that every governmental activity must be equally available to everyone of varying degrees of tone deafness or tone sensitivity. There are constitutional principles, however, suggesting that the availability of governmental activities should not depend on one's own religious beliefs.
6.28.2005 8:19pm
Goober (mail):
Jon Rowe:

Very well put, and far abler than I was about to do myself before I read that you'd already demonstrated the Civil War Amendments rebuttal to Cramer.

But with respect to cognizable harm: Surely you must concede the First Amendment doesn't operate by the same rules of standing as do other constitutional provisions? And if it's concrete harm you would demand, doesn't that make it hard to explain some of the school prayer cases? Far easier, I think, to read the First Amendment as granting a legal right and cause of action to all citizens that their government not violate Establishment.
6.28.2005 8:49pm
Jon Rowe (mail) (www):
Goober,

As I said, I'm still trying to think through these things w/ an open mind.

Re: school prayer, certainly being forced to pray would be coercive and thus harmful and not constitutionally permitted.

If it's just sitting back and being forced to listen to a prayer that a school official recites...well as I've argued on my blog, if we constitutionally permit Christian prayers being broadcast in a school, then we must also constitutionally permit -- say a Muslim controlled schoolboard -- to have their prayers broadcast in a school where Christians and Jews may attend.

Note: I'm not saying I support any of this as a matter of public policy (I don't). I'm simply saying that if it's constitutionally permitted that Christian prayers be broadcast in a public school, then it's also constitutionally permitted for Muslims prayers, or Wiccan prayers, or unitarian prayers to broadcast in school IF these schools so choose.

While government may in some instances acknowledge certain religious points of view and disregard others (if all it's doing is merely acknowledging with words or symbols and nothing else), the Constitution does not offer any greater protection to any religion over another. In other words, the Constitution can never say it's Constitutional to engage in Judeo-Christian prayers, but un-Constitutional to engage in Muslim or Wiccan prayers.

As I said, I'm still trying to think through some of these issues. If the Court did "lower the Wall" and allowed for school prayers and some Alabama school engaged in overtly fundamentalist Christian prayers, given that public schools in most places are heavily into the diversity-multicultural ideal, I can see many schools, especially in the North East, going out of their way to include official Islamic, Buddhist, Hindu and New Age prayers.

And then how would the fundamentalist Christians like it when their children are being forced to listen to prayers that include Allah and Ganesh?

Careful what you wish for, you might just get it.
6.28.2005 9:20pm
FlavaFlay:
A couple of thoughts:

I think that since the NYT uses the phrase "the founders," and not some (or most) founders, they are suggesting that the idea of a clear wall of separation is actually embedded in the constitution.

Additionally, I believe that Cramer brings up the points he did not to advocate them or suggest that Jefferson and Madison advocated them, but to suggest that the existence of such examples belie the NYT assertion.

There was a point I wanted to make regarding affirmative action that borrowed the language and construction of steveh2's post immediately above, but I decided against it for it would have been mostly off-topic. Perhaps you can guess what I was going to say anyway.
6.28.2005 9:24pm
DVRS (mail):
What I've never understood is why it's supposed to be so harmful for, say, an atheist to live in a community that officially acknowledges God, or for a Jew to live in a community that is officially Christian.

The standard answer is that such official endorsements of religion exclude nonbelievers from the community. Well, sure. But so do lots of other things. The U.S. government has taken an official position that the war in Iraq was a good idea. I disagree. Thus I am, in a sense, excluded from the community.

To take an even more similar example: the government is obviously allowed to take the position that free-market democracy is good and Communism is pernicious. Let's say I'm a Communist. Aren't I likely to feel just as excluded as an atheist in a nominally Christian community? Yet no one thinks that my feelings preclude the government from taking a position.

Now, sure, I understand that religion is a special case because there's, you know, a special amendment about it and all. But the issue is what that clause should mean; and I don't see why arguments based on "divisiveness" and "exclusion" hold much water when the clause applies only to one small part (i.e., religion) of the many things that can divide and exclude people.
6.28.2005 9:30pm
Steve Jackson (mail):
I have yet to find a single person who is truly offended by the display of the ten commandments on government property. Actually, the constant refrain is that Christians should "practice what they preach."

I'm not a Buddhist but I still go to my local Thai restaurant that has a statue of the Buddha.
6.28.2005 9:54pm
FlavaFlay:
DVRS:

I don't believe that a notion of harm is necessary to making a determination on the constitutionality of acknowledging religion, although I personally believe that religion is neither inherently divisive nor inherently exclusionary.

I think it is more helpful to think of the analogies with anti-discrimination legislation. There are a host of protections regarding discrimination (race, gender, etc.) in the constitution and law. The reason why the arguments you call into question hold water is because they involve arenas of society that the government has specifically decided to weigh in on, either in law or the constitution. That is reason enough.

On a more personal note, I believe that as long religious expressions do not uniformly favor one religion, are not invasive or pervasive, and are ignorable, then perhaps they would fulfill the Establishment Clause in my eyes. Of course, discrimination and coercive establishment would be indefensible.

I recently attended my sister's graduation at Brown University (for which I am very proud of her). At the Baccalaureate service, in the traditions of dozens of religions, thanks to God was expressed, but I'm certain that not every graduate's spiritual beliefs were covered during the ceremony. Would such a service have been in violation of the Establishment Clause had the service been organized and delivered by the Government?
6.28.2005 10:32pm
William Baude (mail) (www):
Obviously Cramer's examples are all irrelevant to exegesis of the meaning of the opaque establishment clause, because whatever "wall" existed would have applied only to the federal government.

I happen to tentatively agree with Zywicki and others in this thread on the interpretation of the establishment clause itself, but it's worth noting that that's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New york Times is right on the specific point, but wrong on the legal question. Credit where credit is due.
6.28.2005 10:42pm
FlavaFlay:
I don't believe the New York Times is correct on the specific point. While I will grant that they may not have the space to be perfectly correct, at the very least their carelessness has rendered their statement incorrect.

It is essential to the meaning of the statement that the NYT used the plural with the word founders. The opinion of Thomas Jefferson cannot possibly be expanded to suggest that it was the founders who came up with the idea of a clear wall of separation. The correct characterization would be this: Thomas Jefferson believed that "the whole American people declared that [restatement of Establishment Clause], thus building a wall of separation between church and state."

Please note that Jefferson is suggesting that the Establishment Clause itself builds the wall of separation. This is merely the opinion of one man not involved in the process of drafting the constitution.

The NYT, as I stated before, is suggesting that the Establishment Clause is equal to a wall of separation. The NYT is suggesting that those who drafted the Establishment Clause came up with this idea. It was not the founders who came up with this idea. It was one man who was a founder but not a framer, who suggested that the framers built a wall of separation with this clause. By no means can the opinion of one person be taken as the truth of the matter, as the NYT has done, assuming they are trying to be faithful to historical fact.

I'm not really sure what else I can say to defend my position. At this hour, it is becoming more and more difficult to express my thoughts.
6.28.2005 11:29pm
Jonathan M (mail) (www):
Correctly if I am wrong, but I think there may be an alternative viewpoint that may be correct. Jefferson is attributed to the famous "Wall of separation" phrase, not the rest of the founders, of course.

But perhaps one could look to Spinoza or Locke's work for what he might mean by this. I think they came up with the idea of a separation of religion and government long before the founders did.
6.29.2005 12:01am
William Baude (mail) (www):
Jonathan M: Perhaps Locke and Spinoza did. See, e.g. letter concerning toleration. But the point at issue is the genesis of the "wall" not the idea of religious freedom, which obviously predates it.
6.29.2005 9:52am
Tumbling Dice (mail):
Bill Baude-

Yes, I was careless in referring to the Constitutional Convention instead of the First Congress. However, Jefferson was not a party to either, and therefore, my point in bringing it up (that he was hardly an authoritative source of the "Founders" intent on the matter) still holds.

I'm reminded of that Monty Python line about watery tarts dispensing swords. here, TJeff seems to be the lady of the lake.

It would be swell if one of the blog posters could link us to a good law review quality article about the genesis of the Wall. I am almost certain that it was first introduced into constitutional law in the Lemon case and that the support for the assertion therein is rather weak.
6.29.2005 11:15am
William Baude (mail) (www):
Tumbling Dice:

Chief Justice Waite's Opinion for the Court in Reynolds v. United States, 98 U.S. 145, 1878 is the first one to introduce the wall into the jurisprudence of the supreme court. It quotes extensively from Jefferson's Danbury Baptists' letter, including the "Wall of separation" language, and then holds:

"(I)t may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. "

I believe that the next case to cite the wall, and the first case to incorporate the wall against the states, is Hugo Black's opinion in Everson v. Board of Ed. 330 U.S. 1 (1947). Black's opinion cites both Jefferson and Reynolds for this.

It's not a law review article, but I hope that will do.
6.29.2005 11:33am
William Baude (mail) (www):
But, for what it may be worth, I'm not sure C.J. Waite is actually right to assume Jefferson's views were incorporated into the Establishment Clause. But in any case, it's clear that the wall metaphor has been kicking around since the founding, which is what Professor Zywicki asked about. [There's far more for those interested in Vol. III of David Currie's Constitution in Congress.]
6.29.2005 11:36am
Clayton E. Cramer (mail) (www):
"I believe that the next case to cite the wall, and the first case to incorporate the wall against the states, is Hugo Black's opinion in Everson v. Board of Ed. 330 U.S. 1 (1947). Black's opinion cites both Jefferson and Reynolds for this."

From my digging, I believe that you are correct. But what is really interesting about this is that Reynolds is a decision that the ACLU would oppose today--because it banned polygamy. (The ACLU has taken the position that it opposes polygamy laws.) While Reynolds argued that the federal polygamy ban was to prevent "patriarchy," I don't think anyone seriously believes that it was anything other than a Christian majority imposing its views on a minority religion--exactly the sort of action that a serious application of "separation of church and state" would prohibit.

Concerning the 14th Amendment: there's no question that it imposes the First Amendment onto the states--but what meaning of the establishment clause does it impose? The behavior of the federal government with respect to church services in public buildings, and all the God-talk by the First Congress, would suggest that the 14th Amendment imposed an establishment clause considerably at variance from the ACLU's notion.
6.29.2005 11:47am
William Baude (mail) (www):
Mr. Cramer:

There is indeed question about whether all of the provisions of the First Amendment constitute liberties (or, as I prefer, privileges and immunities) of the sort that the 14th Amendment incorporates against the states. The Free Exercise and Free Speech clauses are surely incorporated, but not necessarily the Establishment Clause.

Thomas's Newdow opinion is only one example of this; there is plenty of anti-establishment-incorporation scholarship too. So one could quite reasonably stand for a federal wall but no establishment clause at all for states, so long as they respected the free exercise clause.

Anyway, Reynolds's citation of Jefferson's "Wall" is indeed quite strange, given what the opinion goes on to do, but I suppose that is the point that Michael McConnell made during his confirmation hearings when suggesting that Reynolds might be wrong today.
6.29.2005 12:14pm
Clayton E. Cramer (mail) (www):
By the way, McConnell wrote a very useful paper about the establishment and free exercise clauses some time in the 1980s that I remember reading in a history class. I don't remember all the details right now, but he pointed out that with respect to the free exercise clause, there are several different ways to understand what that protects. Does it protect all actions taken in pursuit of free exercise? If it protects actions, then the government can't prohibit polygamy, or religious orgies, or animal sacrifice along the lines of Santeria. Well worth reading--I don't have a citation for the paper right now.
6.29.2005 12:39pm
Tumbling Dice (mail):
So, to what extent does Chief Justice Waite's Opinion for the Court in Reynolds v. United States, 98 U.S. 145, 1878 discuss or base the assertion that the "Wall of separation" language "may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured" ?

Essentially, no, that will not do. I'm looking for a more extensive examination of the subject matter than a conclusory statement in a Supreme Court Opinion. I would hope that it is clear that there is a difference between "what the Sup Ct says is so" and "the truth" (or as close as we can get to it.

Especially when, as here, the Court is going to interpret using the aid of something other than the writings/debates of those who were actually present and participating in the legislative process which resulted in the text at issue.
6.29.2005 12:55pm
Clayton E. Cramer (mail) (www):
Well, there's this blog entry of mine examining the sequence of events from the Jefferson letter to the present. Here's an excerpt:

Supreme Court Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) is still considered an important source by the federal courts for understanding original intent. Story argued that it was probable that when the Constitution and the First Amendment were adopted, “the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.” “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” [Joseph Story, Commentaries on the Constitution of the United States… (Boston: Hilliard, Gray And Company, 1833), §§ 1865, 1871, available at http://www.constitution.org/js/js_000.htm, last accessed July 7, 2004.]

So what happened to this understanding of the First Amendment? The U.S. Supreme Court’s first use of Jefferson’s quote about “separation” of church and state was in a case where today, the ACLU would almost certainly file a friend of the court brief on the losing side. The case involved a group that, at the time, most Americans considered sexual perverts—and worse, who insisted that marriage should not be limited to a man and a woman (at least, not just one woman). Congress prohibited polygamy in the territories, at least partly because the Church of Jesus Christ of Latter Day Saints (Mormons) were openly engaged in plural marriage.

In Reynolds v. U.S. (1878), the U.S. Supreme Court upheld that ban on polygamy. Rather than admit that American laws were based on Christianity (a position that could have been supported with reference to Justice Story’s Commentaries), the Court claimed that the law against polygamy was not based on religion: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”[ Reynolds v. U.S., 98 U.S. 145, 165 (1878). ] Polygamy led to patriarchy, the Court decided,[Reynolds v. U.S., 98 U.S. 145, 166, 167 (1878).] and because Jefferson had written about the distinction between beliefs and actions—and polygamy was definitely an action, and not just a belief, they quoted Jefferson’s letter to the Danbury Baptists to defend their position.

Here was the first transmission error. Jefferson’s letter was sympathetic to the Danbury Baptists because Connecticut was playing favorites, giving one denomination legal and economic advantages not enjoyed by others. In the Reynolds case, Congress passed a law that applied equally to everyone in the territories, regardless of their religious beliefs. It did not matter if you were a Baptist, Catholic, Mormon, Muslim, or an atheist, federal law prohibited polygamy. That the polygamy law had more impact on Mormons at the time than other groups did not mean that the law discriminated against a particular religion. In modern terms, the polygamy statute had disparate impact (it affected one group more than another), but it was not narrowly written just for that group.

The next use of Jefferson’s “separation” metaphor was Everson v. Board Of Education Of Ewing Township (1947). In this case, a New Jersey township board of education provided for transportation services for children to both public and private schools—in some cases, Catholic schools. The lawsuit sought to prohibit payment for busing of children to Catholic schools, claiming that such payments violated the establishment of religion clause. The Supreme Court made a claim completely contrary to the available historical evidence, relying instead on the precedent from Reynolds:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. [Everson v. Board Of Education Of Ewing Tp., 330 U.S. 1, 16, 17 (1947).]
Nor did the Everson decision give any authority for its claim that the First Amendment required complete neutrality regarding religion. The Supreme Court pointed to Jefferson’s 1802 letter to the Danbury Baptists, which had only addressed the question of whether states should give legal preference to one church, and argued that the First Amendment should be understood as meaning no law could aid any religion—-a position that Jefferson did not take in that letter, and that Reynolds did not take, either. While both Jefferson and Madison (principal author of the Bill of Rights) had certainly played a role in disestablishing the Anglican Church in Virginia, the rest of the First Congress—-who also voted on the First Amendment—-did not share Jefferson and Madison’s views on disestablishing churches at the state level. There is also no evidence that Jefferson and Madison would have agreed with this claim that “no law could aid any religion”—and the actions of both Jefferson and Madison Administrations, as we have previously seen, suggest otherwise. While the Everson Court upheld the law—-because the money was only being spent on transportation to and from a Catholic school—-the decision established an incorrect precedent based on Reynolds—-and the game of telephone continued.

The following year, McCollum v. Board Of Education (1948) involved the use of public school facilities in Illinois for religious instruction. With parental consent, clergymen representing the Protestant, Catholic, and Jewish faiths provided religious instruction to children of their respective faiths. The Supreme Court ruled that this was an unconstitutional action. “This is beyond all question a utilization of the tax- established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education….” [McCollum v. Board Of Education, 333 U.S. 203, 210, 211 (1948).] But since Everson had misinterpreted Reynolds, which had misinterpreted Jefferson’s letter to the Danbury Baptists—-which only expressed a personal opinion, not a legal requirement, about state preference for a particular denomination, it is hard to take this decision seriously. Yet, decision after decision of the U.S. Supreme Court is based on McCollum—-a embarrassing chain of misinterpretations of what was, at best, only one point of view about the meaning of the First Amendment.

It is high time that “separation of church and state” be given a proper (and secular) burial. The history behind “separation of church and state” is embarrassingly sloppy, and a clear examination of original intent shows that the First Amendment was not intended to provide either complete separation, nor complete neutrality.
6.29.2005 1:14pm
Jon Rowe (mail) (www):
As I have admitted, I'm still trying to think through these issues, but let me note that scholars such as Akhil Amar and even Michael McConnell have made the case that even if the "reasoning" of particular EC doctrines is incoherent or incorrect, the many of the Supreme Court's "separation" outcomes are more often than you would think, correct or otherwise belie the notion that the EC does nothing more than prohibit a national Church.

If you want to go back to proper original understanding of the First and Fourteenth Amendments, we must look at not only what they DID, but also the ideals they posited. Because often what the Founders did was inconsistent with their ideals.

RE: Religion, the natural rights theory that undergirds our Founding holds that all men have unalienable Free and Equal rights of conscience, and this applies not just to Christians but to, in Jefferson's" (and Madison's) words, "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination."

So the Constitution affords no more protection to Christianity than the atheistic or polytheistic religions.

Now this isn't to say that government may not through its mere acknowledgements seem to favor one religion over another.

I think this is where the notion of Thomas's "coercive establishments" comes in. Yes, government must remain neutral between religions and between religion and irreligion, but only when some tangible right is on the line. In other words with regard to the "Free Exercise of Religion" or any of the other "Privileges or Immunities" of citizenship than government may offer, it must remain neutral between the religions and between the religious and irreligious.

So that if government gives out aid in the form of a voucher program, it can't just give it to the Christian schools, but must make it generally available to the Muslim schools, the Scientologist schools, etc.

But what if government is doing nothing more than acknowledging with its mere words or symbols a preference of one religion over another or religion over irreligion. How does that "pick a person pocket or break his legs" to use Jefferson's words.

As a secularist, I think I need to offer more than "this offends me" to make it a federal issue.

Akhil Amar, I think, correctly notes that instead of the rubric of "Wall of Separation," instead, "the Equal Rights of Citizenship" is the more proper Constitutional place for these claims to be made.

From a post of mine where I quote Amar and his outstanding book on the Bill of Rights:

Perhaps the greatest elaboration came from Thomas Cooley's influential 1868 treatise. Under prevailing state constitutions, wrote Cooley, states generally could not enact "[a]ny law respecting an establishment of religion....There is not religious liberty where any one sect is favored by the State....It is not toleration which is established in our system, but religious equality." Even a noncoercive establishment, Cooley suggested, violated principles of religious liberty and religious equality -- violated norms of equal rights and privileges. And once we see this, it turns out that the question -- should we incorporate the establishment clause? -- may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself "the White Supremacy State"; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality. pp. 253-4


On another post I ask similar questions; what if the State of Alabama erects a Billboard stating, "The Catholic Church is the Whore of Babylon." I'm sure none of us would support this as a political act. The question is would it be unconstitutional?

On the one hand, we could argue that as long as the state lets Catholics worship as they please, and does not otherwise bar them from any government "Privileges or Immunities" that other religions may receive on an equal basis or tangibly harm them in any way, it's just a billboard, nothing else.

But on the other hand, it does seem to offend basic principles of equal citizenship and equal protection. But if we go down that road, we've just concluded, as a constitutional matter, government can not acknowledge with its mere words one religion over another.
6.29.2005 2:33pm
Clayton E. Cramer (mail) (www):
"If you want to go back to proper original understanding of the First and Fourteenth Amendments, we must look at not only what they DID, but also the ideals they posited. Because often what the Founders did was inconsistent with their ideals."

Perhaps rather than their actions being inconsistent with their ideals, their ideals were inconsistent with our understanding of their ideals?

Once upon a time, it was popular (and remains so with the ACLU) to claim that freedom of speech and of the press was unlimited, based on the lack of exceptions written into the First Amendment's "Congress shall pass no law...." We know that laws prohibiting obscenity, and both civil and criminal libel laws remained on the books, and continued to be enforced throughout this period. So were the Founders inconsistent between ideals and actions? Or did free speech absolutists fail to understand that the Founders recognized that there were certain exceptions to this notion of freedom of the press?
6.29.2005 2:43pm
William Baude (mail) (www):
Mr. Cramer:

Were there federal obscenity laws before the passage of the 14th Amendment? I dimly recall a few being smuggled into some provisions regulating seamen in the 1830s or so, without recorded debate, but what about other than that?
6.29.2005 2:53pm
Clayton E. Cramer (mail) (www):
"Were there federal obscenity laws before the passage of the 14th Amendment?"

That's an excellent question. I don't know. Is there anything in common law that addresses this question? I would be very surprised if there was not.
6.29.2005 3:23pm
Clayton E. Cramer (mail) (www):
There are at least federal obscenity laws proposed before the passage of the 14th Amendment, although I don't know if they were passed into law. See "Bills and Resolutions, House of Representatives, 34th Congress, 3rd Session: Read twice, and referred to the Committee on Finance." HR 617: "December 17, 1856

Read twice, and referred to the Committee on Finance. An Act To amend the twenty-eight section of the act of Congress approved the thirtieth of August, eighteen hundred and forty-two, entitled ''An act to provide revenue from imports and to change and modify existing laws imposing duties on imports, and for other purposes''--prohibiting the importation of obscene and indecent articles, so as more effectually to accomplish the purposes for which that provision was enacted."

The Senate passed it without amendment February 28, 1857, and sent it to the President March 2, 1857.

It also appears that Congress passed something similar in 1842:


Sec. 32. And be it further enacted, That the importation of all indecent and obscene prints, paintings, lithographs, engravings, and transparencies, is hereby prohibited; and no invoice or package whatever, or any part thereof, shall be admitted to entry, in which any such articles are contained; and all invoices and packages, whereof any such articles shall compose a part, are hereby declared to be liable to be proceeded against, seized, and forfeited, by due course of law, and the said articles shall be forthwith destroyed.
House Journal, August 17, 1842, p. 1341.
6.29.2005 3:39pm
Clayton E. Cramer (mail) (www):
Yes, the 1857 measure definitely made it into law. Public Law IX, 34th Cong., 3rd sess.
6.29.2005 3:44pm
William Baude (mail) (www):
Fascinating stuff. I wonder why it took them so long.
6.29.2005 4:00pm
Clayton E. Cramer (mail) (www):
"I wonder why it took them so long."

Laws are often passed only after a problem becomes large enough (or well enough publicized) to hit the radar screens of the government. For example, LSD was legal for a rather long time after it became popular as a hallucinogen.

I would also look into the possibility that the invention of the photograph might have played a part in the 1857 law's passage. There have always been obscene writings. "Erotic art" has been around a long time as well; Queen Victoria and Prince Albert gave each other paintings that were definitely the adult movies of their time. Within a couple of years of the invention of the photograph, however, there was a rapidly growing supply of pornographic pictures. No surprise: obscene writing requires literacy, while obscene photographs only require you to be able to see.
6.29.2005 4:20pm
Clayton E. Cramer (mail) (www):
Did you know that the government reserved section 29 of each township in Ohio for the support of religion? See American State Papers, House of Representatives, 11th Congress, 3rd Session
Public Lands: Volume 2, p. 220, document 187:
It appears to the committee, by the statement of the petitioners, that the third township of the eighth range in the Ohio Company's purchase is a fractional township, being intersected near the centre by the boundary line that separates the track purchased from the donation tract conveyed to the said company; that the said fractional township does not contain the section No. 29, set apart for the support of religion in the several townships in the said purchase, whereby the inhabitants are deprived of the benefit of the ministerial lands.
As late as 1833, you find Congressional bills that make reference to this, such as HR 653, 22nd Cong., 2nd sess.
To authorize the Legislature of the State of Ohio to sell the land reserved for the support of religion in the Ohio Company....
This seems to be the bill that created this, from Journal of the Senate of the United States of America, 1789-1873, December 30, 1801:
Mr. Tracy gave notice that he should, to-morrow, ask leave to bring in a bill to carry into effect the appropriations of lands in the purchase of the Ohio company, in the northwestern territory, for the support of schools and religion, and for other purposes.
Any notion of neutrality between religion and nonreligion is contradicted by the actions of Congress.
6.29.2005 5:11pm
Owen Courrèges (mail) (www):
Will,

Another plausible defense of Zywicki's argument is that while Jefferson did posit a "separation of church and state," he did not do so in the way the Supreme Court invokes it today. Specifically, Jefferson didn't support judicial review, thinking it was tyrannical for the Supreme Court to slap down popular legislation.

This is important because what's bothersome about the separation doctrine is not when it's invoked as an ideal, but when it's invoked as law to be enforced by the courts. That's a crucial difference given the nature of the current debate. I don't know of any founder who both supported judicial review and held to such a strict view of the establishment clause.

And on one other note... It's probably worth saying that in his actions, Jefferson was not the abosolutist vis-a-vis separation that his words would indicate. He attended mass in the capitol building too. Perhaps his "wall" wasn't quite as thick as the one invoked by the Supreme Court today.
6.29.2005 5:42pm
William Baude (mail) (www):
As I understood the Congresional debates over the Ohio stuff, it rested on the understanding (apparently but inexplicably widespread) that the Bill of Rights didn't apply to the territories. This was very odd, since it was generally concded that the BoR did apply to D.C., but there you go.

Thus the belief that there was no need to guarantee jury trial and other constitutional rights in the Louisiana territory, Letter from Thomas Jefferson to Albert Gallatin (Nov. 9, 1803), in 10 The Works of Thomas Jefferson, supra note 104, at 46.

Of course, the Supreme Court would later disagree, Dred Scott v. Sanford, 60 U.S. 393, 450 (1856). I have more on this back in New Haven, but not on hand.

Anyway, there is some quite confused stuff on all sides of the debate, e.g. the Senate debate in the 1820s and 30s about shutting down the Sunday mails and Madison's church-charter veto. I don't know of any historical investigation to rival McConnell's, so I'll stick with that.
6.29.2005 5:55pm
William Baude (mail) (www):
Owen:

These are both fair points. I am certainly not going to use this space to argue that Hugo Black's or the New York Times's view of the Establishment Clause tracks the original history. But however porous Jefferson's Wall was, and however unlikely that it represents the actual original meaning of the clause, he does seem to have come up with the idea of a wall.

I think the most enlightening original debate on the establishment clause is in David Currie, The Sunday Mails in the Green Bag, reprinted in the third colume of the Const. in Congress.
6.29.2005 5:58pm
Clayton E. Cramer (mail) (www):
"I am certainly not going to use this space to argue that Hugo Black's or the New York Times's view of the Establishment Clause tracks the original history. But however porous Jefferson's Wall was, and however unlikely that it represents the actual original meaning of the clause, he does seem to have come up with the idea of a wall."

The big problem here is that Jefferson's Wall was written with respect to a situation that everyone (well, I think everyone) agrees is a legitimate meaning of the establishment clause: the federal government, and because of 14th Amendment incorporation, the state governments, may not grant any privileges or powers to a particular religious body or organization that are not available to others as well.

I think you can make a case that the Founders assumed that the dominant religion of America would be something at least vaguely Christian. (Even the various Deist and Unitarian movements of the era were a lot closer to Christianity than they later became.) I think just about all of the Founders would have been startled how many other religions are now well-represented in America. However, the establishment clause does not explicitly grant Christian denominations any special favor over other religions. It does seem clear from the actions taken by Congress that there was no obligation or expectation of neutrality between "religion and nonreligion."
6.29.2005 6:58pm
Jon Rowe (mail) (www):
Will,

I just saw your post which links to this one. The phrase "Wall of Separation" arguably does have an origin dating back over a hundred years before Jefferson.

Roger Williams, in I think 1644, spoke of "a wall of Separation between the Garden of the Church and the Wilderness of the World."

However, there is some real doubt as to whether Jefferson or the other Founders read or were influenced by Williams; rather they were more likely influenced by Locke and the Enlightenment arguments for religious freedom (that's where the concept of "rights" or "unalienable rights" derives).

Williams is sort of "the Founder" of the "dissident Protestant" movement for religious liberty and for government that is in principle, secular.

Philip Hamburger in his book on Separation argues that Williams wasn't really concerned with protecting the persecuted but was rather motivated by a fanatical desire to keep religion pure (Williams was no "liberal Protestant," but rather as much of a fanatical fundamentalist as one gets).

I don't know how relevant that is however; Williams did state:

"Sixthly. It is the will and command of God that, since the coming of his Son the Lord Jesus, a permission of the most Paganish, Jewish, Turkish, or anti-christian consciences and worships be granted to all men in all nations and countries: and they are only to be fought against with that sword which is only, in soul matters, able to conquer: to wit, the sword of God's Spirit, the word of God."

It was this type of sentiment which allowed for religious pluralism to emerge in the US and the West. But it was quite a novel interpretation of the Bible at the time. He was essentially arguing against his fellow fundamentalists -- John Winthrop and the Puritans of Mass. -- who attempted to incorporate the entire Bible in the Civil Code and had laws on the books demanding execution of those who worshipped false Gods or "any other God but the Lord God." What a disaster that was. Their view was dominant and they banished Williams to found Rhode Island. But Williams's view would become more dominant, or at least more common later on because so many sects were persecuted and could benefit from his arguments.

Madison, even though he wasn't religious in an orthodox sense (like Williams) certainly played up on sentiments to which Williams gave birth when making his arguments.
6.29.2005 8:00pm
William Baude (mail) (www):
Fascinating. If I must stand corrected because the "wall of separation" predates the founding by a good measure, I am perfectly happy to do so.
6.29.2005 9:25pm
Jim Lindgren (mail):
At volokh.com, I just pointed to Hamburger's research on Separation.

Jim Lindgren
6.30.2005 2:13am
AnonyAnonyAnony:
Forget not that James Madison believed that members of Congress should pay for Congressional chaplains out of their own pockets because using public funds for said purpose was a violation of the First Amendment.
6.30.2005 12:47pm
Clayton E. Cramer (mail) (www):
"Forget not that James Madison believed that members of Congress should pay for Congressional chaplains out of their own pockets because using public funds for said purpose was a violation of the First Amendment."

Could you give me a source for that? I don't find it implausible--although if so, Madison lost the struggle on that, did he not? The First Congress did hire a chaplain, I believe.
6.30.2005 12:58pm
eponymous coward:
Of course, there's the Virginia Statute for Religious Freedom, which is arguably the antecdent for the First Amendment Establishment clause:

Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

That's a LOT closer to Jeffersonian "separation", FWIW.
6.30.2005 3:32pm
Jon Rowe (mail) (www):
Anony may be referring to Madison's Detached Memoranda:

Here is a long passage, but not the whole thing:

"Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

"In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

"The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds &consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics &Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.

"If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt

"Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

"Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex: or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura."

"Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro' the armies &navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion is not a nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction &exhortation from a voluntary source within or without, will rarely happen: and if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous zeal. The armies of the Puritans had their appointed Chaplains; but without these there would have been no lack of public devotion in that devout age."
6.30.2005 5:58pm
Cityduck (mail):
I hate reading these kind of debates. It is obvious to me that many of you are relying upon secondary sources of dubious validity. If you really want to know what the guys who drafted, enacted and ratified our Constitution thought (as opposed to those who opposed its ratifiation), you should read their writings and not secondary sources -- whether they be noted jurists like Joseph Story or internet wackos like Wallbuilders.

As an example, in the North Carolina ratification debates much discussion occurred over the role of the Federal government in religion. The proponents of the constitution took the position that the Federal government had NO POWER to pass legislation bearing on religion. In other words, AS TO THE FEDERAL GOVERNMENT, there was a wall of separation. This point was forcefully made by Richard Dobbs Spaight, a framer, during the North Carolina ratification debates.


Mr. SPAIGHT. Mr. Chairman, I am one of those who formed this Constitution. ... As to the subject of religion, I thought what had been said would fully satisfy that gentleman and every other. No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation.

No sect is preferred to another. Every man has a right to worship the Supreme Being in the manner he thinks proper. No test is required. All men of equal capacity and integrity, are equally eligible to offices. Temporal violence might make mankind wicked, but never religious. A test would enable the prevailing sect to persecute the rest. I do not suppose an infidel, or any such person, will ever Be chosen to any office, unless the people themselves be of the same opinion. He says that Congress may establish ecclesiastical courts. I do not know what part of the Constitution warrants that assertion. It is impossible. No such power is given them.


The, leading proponent for adoption of the Constitution in North Carolina was noted Federalist James Iredell, who would later serve on the Supreme Court after being appointed by Washington. Mr. Iredell made some of the most eloquent arguments in favor of its adoption. It was Mr. Iredell's comments which Mr. Spaight referenced in the excerpt above during the debate over the "no religious test clause" of the Constitution. Mr. Iredell's comments are noteworthy, and I beg your forgiveness for including some context:


WEDNESDAY, July 30, 1788.

The last clause of the 6th article read.

Mr. HENRY ABBOT, after a short exordium, which was not distinctly heard, proceeded thus: Some are afraid, Mr. Chairman, that, should the Constitution be received, they would be deprived of the privilege of worshipping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution, They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws infringing their religious liberties. The worthy member from Edenton mentioned sundry political reasons why treaties should be the supreme law of the land. It is feared, by some people, that, by the power of making treaties, they might make a treaty engaging with foreign powers to adopt the Roman Catholic religion in the United States, which would prevent the people from worshipping God according to their own consciences. The worthy member from Halifax has in some measure satisfied my mind on this subject. But others may be dissatisfied. Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal. The exclusion of religious tests is by many thought dangerous and impolitic. They suppose that if there be no religious test required, pagans, deists, and Mahometans might obtain offices among us, and that the senators and representatives might all be pagans. Every person employed by the general and state governments is to take an oath to support the former. Some are desirous to know how and by whom they are to swear, since no religious tests are required — whether they are to swear by Jupiter, Juno, Minerva, Proserpine, or Pluto. We ought to be suspicious of our liberties. We have felt the effects of oppressive measures, and know the happy consequences of being jealous of our rights. I would be glad some gentleman would endeavor to obviate these objections, in order to satisfy the religious art of the society. Could I be convinced that the objections were well founded, I would then declare my opinion against the Constitution. [Mr. Abbot added several other observations, but spoke too low to be heard.]

Mr. IREDELL. Mr. Chairman, nothing is more desirable than to remove the scruples of any gentleman on this interesting subject. Those concerning religion are entitled to particular respect. I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions, Under the color of religious tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centred in themselves; that they alone had a right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been, that each church has in turn set itself up against every other; and persecutions and wars of the most implacable and bloody nature have taken place in every part of the world. America has set an example to mankind to think more modestly and reasonably — that a man may be of different religious sentiments from our own, without being a bad member of society. The principles of toleration, to the honor of this age, are doing away those errors and prejudices which have so long prevailed, even in the most intolerant countries. In the Roman Catholic countries, principles of moderation are adopted which would have been spurned at a century or two ago. I should be sorry to find, when examples of toleration are set even by arbitrary governments, that this country, so impressed with the highest sense of liberty, should adopt principles on this subject that were narrow and illiberal.

I consider the clause under consideration as one of the strongest proofs that could be adduced, that it was the intention of those who formed this system to establish a general religious liberty in America. Were we to judge from the examples of religious tests in other countries, we should be persuaded that they do not answer the purpose for which they are intended. What is the consequence of such in England? In that country no man can be a member in the House of Commons, or hold any office under the crown, without taking the sacrament according to the rites of the Church. This, in the first instance, must degrade and profane a rite which never ought to be taken but from a sincere principle of devotion. To a man of base principles, it is made a mere instrument of civil policy. The intention was, to exclude all persons from offices but the members of the Church of England. Yet it is notorious that dissenters qualify themselves for offices in this manner, though they never conform to the Church on any other occasion; and men of no religion at all have no scruple to make use of this qualification. It never was known that a man who had no principles of religion hesitated to perform any rite when it was convenient for his private interest. No test can bind such a one. I am therefore clearly of opinion that such a discrimination would neither be effectual for its own purposes, nor, if it could, ought it by any means to be made. Upon the principles I have stated, I confess the restriction on the power of Congress, in this particular, has my hearty approbation. They Certainly have no authority to interfere in the establishment of any religion whatsoever; and I am astonished that any gentleman should conceive they have. Is there any power given to Congress in matters of religion? Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm. If they could, sir, no man would have more horror against it than myself. Happily, no sect here is superior to another. As long as this is the case, we shall be free from those persecutions and distractions with which other countries have been torn. If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution, and which the people would not obey. Every one would ask, "Who authorized the government to pass such an act? It is not warranted by the Constitution, and is barefaced usurpation." The power to make treaties can never be supposed to include a right to establish a foreign religion among ourselves, though it might authorize a toleration of others.

But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always right, and every body else wrong. If you admit the least difference, the door to persecution is opened. Nor would it answer the purpose, for the worst part of the excluded sects would comply with the test, and the best men only be kept out of our counsels. But it is never to be supposed that the people of America will trust their dearest rights to persons who have no religion at all, or a religion materially different from their own. It would be happy for mankind if religion was permitted to take its own course, and maintain itself by the excellence of its own doctrines. The divine Author of our religion never wished for its support by worldly authority. Has he not said that the gates of hell shall not prevail against it? It made much greater progress for itself, than when supported by the greatest authority upon earth.

It has been asked by that respectable gentleman (Mr. Abbot) what is the meaning of that part, where it is said that the United States shall guaranty to every state in the Union a republican form of government, and why a guaranty of religious freedom was not included. The meaning of the guaranty provided was this: There being thirteen governments confederated upon a republican principle, it was essential to the existence and harmony of the confederacy that each should be a republican government, and that no state should have a right to establish an aristocracy or monarchy. That clause was therefore inserted to prevent any state from establishing any government but a republican one. Every one must be convinced of the mischief that would ensue, if any state had a right to change its government to a monarchy. If a monarchy was established in any one state, it would endeavor to subvert the freedom of the others, and would, probably, by degrees succeed in it. This must strike the mind of every person here, who recollects the history of Greece, when she had confederated governments. The king of Macedon, by his arts and intrigues, got himself admitted a member of the Amphictyonic council, which was the superintending government of the Grecian republics; and in a short time he became master of them all; It is, then, necessary that the members of a confederacy should have similar governments. But consistently with this restriction, the states may make what change in their own governments they think proper. Had Congress undertaken to guaranty religious freedom, or any particular species of it, they would then have had a pretence to interfere in a subject they have nothing to do with. Each state, so far as the clause in question does not interfere, must be left to the operation of its own principles.

There is a degree of jealousy which it is impossible to satisfy. Jealousy in a free government ought to be respected; but it may be carried to too great an extent. It is impracticable to guard against all possible danger of people's choosing their officers indiscreetly. If they have a right to choose, they may make a bad choice.

I met, by accident, with a pamphlet, this morning, in which the author states, as a very serious danger, that the pope of Rome might be elected President. I confess this never struck me before; and if the author had read all the qualifications of a President, perhaps his fears might have been quieted. No man but a native, or who has resided fourteen years in America, can be chosen President. I know not all the qualifications for pope, but I believe he must be taken from the college of cardinals; and probably there are many previous steps necessary before he arrives at this dignity. A native of America must have very singular good fortune, who, after residing fourteen years in his own country, should go to Europe, enter into Romish orders, obtain the promotion of cardinal, afterwards that of pope, and at length be so much in the confidence of his own country as to be elected President. It would be still more extraordinary if he should give up his popedom for our presidency. Sir, it is impossible to treat such idle fears with any degree of gravity. Why is it not objected, that there is no provision in the Constitution against electing one of the kings of Europe President? It would be a clause equally rational and judicious.

I hope that I have in some degree satisfied the doubts of the gentleman. This article is calculated to secure universal religious liberty, by putting all sects on a level — the only way to prevent persecution. I thought nobody would have objected to this clause, which deserves, in my opinion, the highest approbation. This country has already had the honor of setting an example of civil freedom, and I trust it will likewise have the honor of teaching the rest of the world the way to religious freedom also. God grant both may be perpetuated to the end of time!


Of course, it is also worth noting the comments of an opponent of ratification.


Mr. LANCASTER. ... As to a religious test, had the article which excludes it provided none but what had been in the states heretofore, I would not have objected to it. It would secure religion. Religious liberty ought to be provided for. I acquiesce with the gentleman, who spoke, on this point, my sentiments better than I could have done myself. For my part, in reviewing the qualifications necessary for a President, I did not suppose that the pope could occupy the President's chair. But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it. There is a disqualification, I believe, in every state in the Union — it ought to be so in this system. It is said that all power not given is retained. I find they thought proper to insert negative clauses in the Constitution, restraining the general government from the exercise of certain powers. These were unnecessary if the doctrine be true, that every thing not given is retained. From the insertion of these we may conclude the doctrine to be fallacious. Mr. Lancaster then observed, that he would disapprove of the Constitution as it then stood. His own feelings, and his duty to his constituents, induced him to do so. Some people; he said, thought a delegate might act independently of the people. He thought otherwise, and that every delegate was bound by their instructions, and if he did any thing repugnant to their wishes, he betrayed his trust, He thought himself bound by the voice of the people, whatever other gentlemen might think. He would cheerfully agree to adopt, if he thought it would be of general utility; but as he thought it would have a contrary effect, and as he believed a great majority of the people were against it, he would oppose its adoption.


John Kennedy proved Mr. Lancaster's fears right. But Lancaster was on the wrong side of the debate. Those who voted for the ratification of the Constitution did so believing that Congress had no power to interfere or promote religion. A wall of separation existed in their minds.

Sure the Founders and Framers thought that AS TO THE STATES the establishment of religion was ok. BUT, incorporation was a doctrine that arose long after the Founders and Framers of the original Constitution and the Bill of Rights were dead -- so their beliefs on that point carry no weight.
6.30.2005 6:33pm
CrazyTrain (mail):
Does Todd Zywicki have no intellectual honesty. He posts " no one seriously believes that it was the founders who "came up with the idea of a clear wall between church and state" do they?"

As shown by Will Baude (and is generally known to those who study the constitution), the "wall" statement has its origins with Thomas Jefferson, undoubtedly one of the "founders of this country. Zywicki was wrong. It is unfortunate that he cannot post a retraction, or even admit it in the comments. This is a pattern with Todd's posts -- he puts forward his personal interpretation of the constitution or law -- an interpretation that no doubt is well supported in text, history and reason -- but he then states with little citation that any other interpration is not serious. There have been several instances of this, and people have noticed it. Todd, you need to retract what you said, or clarify, because frankly your post as written is wrong. Dead wrong.

7.1.2005 12:20am
Alsee:
First as for Congressional Chaplains, they were established 16 YEARS BEFORE the constitution and the First amendment even existed. James Madison did in fact say it was unconstitutional, but said he didn't want to "stir a major controversy over a minor matter before the meaning of the amendment had been threshed out in weightier matters". He was too busy warding off religious activist individuals in congress trying to push far more pernicious violations of Religious Freedom. Even so trivial a matter as Congress using public monies to hire Chaplians was a violation of the guarantee of Religious Freedom and the prohibition against the government meddling and dealing in religious matters. The problem, said the author of the First Amendment, was how to prevent "this step beyond the landmarks of power [from having] the effect of a legitimate precedent." Rather than let that happen, it would "be better to apply to it the legal aphorism de minimis non curat lex [the law takes no account of trifles]." Or, he said (likewise in Latin), class it with faults that result from carelessness or that human nature could scarcely avoid. (From the Detached Memoranda.) So yes, the very author of the first amendment said those chaplians were unconstitutional, but that he had bigger battles to fight than that 16 year old triviality.

"Strongly guarded as is the separation between Religion &Govt in the Constitution of the United States" — James Madison, the Detached Memoranda

"And I have no doubt that every new example will succeed, as every past one has done, in shewing that religion &Govt will both exist in greater purity, the less they are mixed together" ... "Every new &successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance." — James Madison July 10, 1822

"It was the Universal opinion of the Century preceding the last, that Civil Government could not stand without the prop of a Religious establishment, and that the Christian religion itself, would perish if not supported by a legal provision for its Clergy. The experience of Virginia conspicuously corroborates the disproof of both opinions. The Civil Government, tho' bereft of everything like an associated hierarchy, possesses the requisite stability and performs its functions with complete success; whilst the number, the industry, and the morality of the Priesthood, and the devotion of the people have been manifestly increased by the total separation of the Church from the State." — James Madison 1819

As for "Freedom From Religion", YES that is explicitly a part of civil freesom against government. "Whilst we assert for ourselves a freedom to embrace, to profess and observe the Religion which we believe to be of divine origin, we cannot deny equal freedom to those whose minds have not yet yielded to the evidence which has convinced us [meaning atheists]. If this freedom be abused, it is an offense against God, not against man: To God, therefore, not to man, must an account of it be rendered." — James Madison June 20, 1785

"I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency of a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded by an entire abstinence of the Government from interference in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespass on its legal rights by others." — James Madison, 1932

There is of course absolutely no dispute as to Thomas Jefferson's view on Separation Of Church And State, and if you want to read quotes from George Washington and Benjamin Franklin and Thomas Paine and John Adams and others then here is a good referrence.


Separation Of Church And State is the very means of ensuring religious freedom. Separation Of Church And State means that students have the right to pray in school, but that school officials - as official agents of the government itself - are forbidden to abuse their governmental powers to either promote or supress student prayer. Separation Of Church And State means that you have a right to engage in private religious speech and displays and practices on government land, but that the government is forbidden from establishing or commissioning or endorsing or prohibiting such acts and displays. Separation Of Church And State means that Congress can no more change the Pledge of Alligiance to add a refference to God than they can have the pledge to say there is no God. An official establishment endorsing monotheistic belief is just as much a violation against polytheistic Native Americans as it is a violation against atheists.

Separation Of Church And State is the very guarantee of individual religious freedom. The government is denied any religious freedom. The government is denied any religious position. The government is denied any religious power. The government is denied any religious influence. You have every right to religion in public... so long as no one attempts to hijack the power of government to accomplish it or to endorse it. The government can neither act to promote nor suppress prayer. The government can neither act to promote nor supress atheism. Government is required to remain neutral on religious beliefs.
9.25.2005 8:41am