|The Constitutional Principle: Separation of Church and State|
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A number of people have attempted to take James Madison's use of the words national religion in his proposed amendments presented to Congress June 8, 1789 and his arguments in the house of Representatives on August 15, 1789 to mean that the sole purpose of the religious clauses in the Bill of Rights was to prevent the creation of a national church or religion. As can be seen from the following, this doesn't really hold up to serious investigation.
In recent discussions of religious freedom and Church-State separation in the United States attention has been so much centered constitutionally on the Bill of Rights that the importance of this Provision in the original Constitution as a bulwark of Church-State separation has been largely overlooked. As a matter of fact it was and is important in preventing religious tests for Federal office--a provision later extended to all the states. It went far in thwarting any State Church in the United States; for it would be almost impossible to establish such a Church, since no Church has more than a fifth of the population. Congress as constituted with men and women from all the denominations could never unite in selecting any one body for this privilege. This has been so evident from the time of the founding of the government that it is one reason why the First Amendment must be interpreted more broadly than merely as preventing the state establishmentof religion which had already been made almost impossible.
Source of Information:
Church and State in the United States, Volume I, Anton Phelps Stokes, D.D., LL.D, Harper & Brothers Publishers (1950) page 527).
On June 8, 1789, James Madison presented his proposed Amendments to the House of Representatives of the First Federal Congress. The following are excerpts from the most relevant discussions.
Monday June 8, 1789 James Madison Speaking:
Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.
Fifthly. That in article 1st, section 10, between clauses 1 and 2 be inserted this clause to wit: No state shall violate the equal rights of conscience, or freedom of the press, or trial by jury in criminal cases.
Source of Information:
Annals of Congress 1:434-435)
The first thing to be noticed is, Madison proposed two negatives on government. One that would be a negative on the newly created general (national) government, and the other that would be a negative on state governments.
Thus, in that context, his use of the word national would be totally appropriate and normal in any discussions regarding the general government.
The debate on August 15 centered on this wording:'no religion shall be established by law, nor shall the equal rights of conscience be infringed.' and was a discussion pertaining to the general government only.
Saturday August 15, 1789
The House again went into a Committee of the Whole on the proposed amendments to the Constitution. Mr. Boudinot in the chair.
The fourth proposition being under consideration, as follows: Article 1. Section 9. Between paragraphs two and three insert 'no religion shall be established by law, nor shall the equal rights of conscience be infringed.'
Mr. SYLVESTER had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. he feared it might be thought to abolish religion altogether.
MR. VINING suggested the propriety ot transposing the two members of the sentence.
MR. GERRY said it would read better if it was no religious doctrine shall be established by law.
MR. SHERMAN thought the amendment altogether unnecessary, inasmuch as Congress had 'no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out.'
MR. CARROLL As the rights of conscience are, in their nature, a peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the government than almost any other opinion he heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.
MR. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
MR. HUNTINGTON said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction on it. The ministers of their congregations to the eastward were maintained by contributions of those who belong to their society; the expense of building meeting houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a federal court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers or buildings of places of worship might be construed into a religious establishment.
By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and the free exercise of religion, but not to patronize those who professed no religion at all.
MR. MADISON thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.
MR. LIVERMORE was not satisfied with the amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it were altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.
MR. GERRY did not like the term National, proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.
MR. MADISON withdrew his motion but observed that the words single 'no National religion shall be established by law', did not apply that the government was a national one; the question was then taken on MR. LIVERMORE's motion, and passed in the affirmative 31 for it, and 20 against it.
Source of Information:
Annals of Congress 1:729-731
In the above exchanges Madison actually lists the things he feels the amendment has to prevent and or accomplish:
(1) he apprehended the meaning of the words to be, that Congress should not establish a religion, and
(2) enforced the legal observation of it by law,
(3) nor compel men to worship God in any manner contrary to their conscience.
(4) that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
(5) He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.
What can be said with any degree of certainty?
We do know for sure that it was to prevent the later use of the "necessary and proper" wording from being used as a doorway to make laws regarding religion. We know that because Madison mentions that.
We do know that it was to prevent a sects, denominations, religions from combining and establishing religions, forcing others to go along with the program. We know that again because Madison mentions it.
We know the obvious, that is it was meant to prevent the government from establishing religion, a religion, a sect, a denomination as the "official" religion of the nation.
We also know that Congress was prevented from making an law RESPECTING an
establishment of religion. We know that because those words were eventually chosen to be used.
We know that several non preferential proposals were made and all lost out to the more broad, less defined word establishment, but even that word did have meaning that applied in this country.
Of the eleven states that ratified the 1st Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion.
Source of Information:
The First Freedoms, Church and State in America to the Passage of the First Amendment, by Thomas Curry, page 220.
Monday, August 17, 1789
The committee then proceeded to the fifth proposition:
Article I, Section 10 between the first and second paragraph, insert 'No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.'
MR. TUCKER this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.
MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.
MR. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; 'the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state.'
This transposition being agreed to, and MR. TUCKER'S motion being rejected, the clause was adopted. (In the final wording of the amendments that was sent to the Senate the transposition had not taken place. No reason for that mistake is recorded.)
Source of Information:
Annals of Congress 1:755)
Madison also treated the establishment clause as if it prohibited a NATIONAL religion and yet construed the clause as if it separated religion and government by erecting between them a high and impregnable wall, just as Jefferson construed the clause. The phrase "NATIONAL religion" appeared in Madison's first draft of the First Amendment, and when the House drafting committee dropped the word "NATIONAL," he suggested in debate that it be restored. Nonpreferentialists construe his use of "NATIONAL" to mean that he sought merely to prohibit the establishment by Congress of a single state church or congressional preference for one church or religion over others. But the evidence indicates that by his use of the word "NATIONAL" in 1789 Madison intended to distinguish an act of the national government from that of a state, without regard to the preferential or nonpreferential character of the NATIONAL act on a matter respecting religion. In the floor debate, he used "NATIONALreligion" to mean "that Congress should not establish a religion."16 He discussed the establishment clause as if the word "NATIONAL" remained in it, yet he continued to interpret the meaning with the most extraordinary latitude [EMPHASIS ADDED].
As president, however, Madison had proclaimed several days for fast and thanksgiving, but he found extenuating circumstances in the fact that he was chief executive during the time a war was fought on national soil. And as he pointed out in his letter of 1822 to Livingston, although he "found it necessary" to deviate from "strict principle" by his Proclamations, he "was always careful to make the Proclamation absolutely indiscriminate, and merely recommendatory; or, rather mere designations of a day on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith and forms." Nevertheless, Madison could have followed the example of Jefferson, who, as president refused Congress's requests to declare days of fasting and thanksgiving. Moreover, as president, Madison approved of chaplains for the armed forces, an action that he later thought unconstitutional.17
In Madison's "Detached Memoranda," written after he retired from the presidency in 1817, he expressed concern that the "danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S.18 He asked, "Is the appointment of chaplain's to the two houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?" By way of answer he replied:
in strictest the answer on both points must be in the negative. The Constitution of the United states forbid anything like establishment of a NATIONALreligion. 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 this not involve a principle of a NATIONAL Establishment, a applicable to provision for a religious worship for the constituent as well as the representative body, approved by the majority, and conducted by ministers of religion paid by the entire nation? 19 [EMPHASIS ADDED]
Madison continued: "the establishment of chaplainship to Congress is a palpable violation of equal rights, as well as a of constitutional principles. . . If religion consists in equal voluntary acts of individual singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents should discharge their religious duties, let them like their Constituents, do so at their own expense."20 He classified chaplainships for the Army and Navy "in the same way" as forbidden "establishments" of an "establishment of a NATIONAL religion."21 Clearly a man who considered unconstitutional the use of public funds for the support of interfaith invocations and benedictions--and nothing could be more non preferential or lacking in would also consider unconstitutional the use of public funds for any other purpose respecting religion. He warned against evil "lurking under the plausible disguises, and growing up from small beginnings. Obsta principiis [resist the beginnings.]"22 The Constitution, he said , misquoting again, "forbids everything like establishment of a NATIONALreligion."23 [EMPHASIS ADDED] He included chaplains for Congress, military and naval chaplains, and presidential proclamations "recommending fasts & thanksgivings" as examples of a NATIONAL religion.24 [MADISON'S EMPHASIS] Rather let these examples, which went beyond "the landmarks of power," had the effect of legitimate precedents he said it was better to apply to them the legal aphorism of minimis non curat lex [the law does not bother with trifles.]25
Thus the proposition that Madison meant merely a national church or no preference in the support of religion is groundless, . . . to Madison "a NATIONAL religion" broadly covered as much as even the most trifling matters. Chief Justice Rehnquist built most of his opinion favoring the constitutionality of non preferential government aid to religion on the baseless reading he gave to " national religion," without considering or knowing that Madison believed that military chaplains or fast day constituted a national religion.26 Rehnquist merely read his own values into " National religion" (as did Madison). The views that Madison expressed in 1789 on establishment of religion conform generally to his views, whether a thought in terms of the general assessment, a religious establishment, or a national religion. In each instance he wanted "perfect separation"27 between government and religion.
16. Annals, 1:757.
17. Dreisbach, Real Threat and Mere Shadow, pp. 152-153.
18. Elizabeth Fleet, ed., "Madison's `Detached Memoranda,"' William and Mary-Quarterly 3 (1946): 554.
19. Ibid., p. 558; emphasis added. \
20. Ibid., pp. 558-59.
21. Ibid., pp. 559-60; emphasis added.
22. Ibid., p. 558.
23. Ibid.; emphasis added.
24. Ibid., pp. 558-60; Madison's emphasis.
25. Ibid., p. 559.
26. Wallace v. Jaffree, 472 U.S. 38, 91-114 (1985).
27. Thomas Jefferson to Edward Livingston, July 10, 1822, in Writings of Madison, 9:100
Source of Information:
The Establishment Clause, Religion and the First Amendment, Leonard W. Levy, Second Edition, Revised, The University of North Carolina Press, (1994) pp. 120 -23.
In the "Detached Memoranda" Madison also stated that "Religious proclamations by the Executive recommending thanksgivings and fasts are shoots from the same root with the legislative acts reviewed [the chaplaincies],"28 Madison made this remarkable judgment about so innocuous an act as a presidential recommendation for a day of thanksgiving, another extreme example of nonpreference on a matter respecting religion. He regarded such recommendations as violating
the First Amendment: "They seem" he wrote, "to imply and certainly nourish the erroneous [sic] idea of a national religion."29
28. Fleet, ed., "Madison's `Detached Memoranda,"' p. 560
29. Ibid.; Madison's emphasis.
Source of Information:
The Establishment Clause, Religion and the First Amendment, Leonard W. Levy, Second Edition, Revised, The University of North Carolina Press, (1994) pp. 123.
Among the evidence of nonpreferentiaists have warped to prove that Madison "took the word establishment to meet only a government religion such as a state church"32 is Madison's statement at the Virginia ratifying convention 1788: "Fortunately for this commonwealth, a majority of people are decidedly against any exclusive establishment--I believe it to be so in other states. There is not a shadow of a right in the general government to intermeddle with religion. . . . The United States abound in a variety of sects, that it is a strong security against religious persecution, and it is sufficient to authorize a conclusion that no one sect will ever outnumber or depress the rest."33 That a nonpreferentialist would italicize the second sentence as a revealing aid to his thesis passes belief. Those words prove the Madison opposed all government support of religion, because government has no power to legislate on the subject. But we're told Madison simply opposed raising one religion above the others.34
32. Cord, Separation of Church and State, p. 10
33. Elliot, ed., Debates, 3 :330, as quoted in Cord, Separation of Church and State, p. 8; Cord's emphasis.
34. Cord, Separation of Church and State, p. 8
Source of Information:
The Establishment Clause, Religion and the First Amendment, Leonard W. Levy, Second Edition, Revised, The University of North Carolina Press, (1994) pp. 124-25.
I highly recommend the following for anyone who wishes to get a more complete picture of these events.
Madison's vetoes: Some of The First Official Meanings Assigned to The Establishment Clause (1811)
James Madison's Memorial and Remonstrance (June,1785)
Congressional Debates: Religious Amendments, 1789
Excerpts from James Madison's Detached Memoranda (written after 1817)
What is significant with respect to the date of its writing is the Madison's "Detached Memoranda" interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison own "Memorial and Remonstrance", or on Jefferson's "Virginia Statute for Religious Freedom," although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.
The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government.
Source of Information:
"Madison's "Detached Memoranda": Then and Now," Pfeffer, Leo. The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History, Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.
Original Intent: Introduction What intent, whose intent?
Original Intent? Part II Excerpts from correspondence of members of the
First Federal Congress -- January 2, 1789 to June 30, 1789
Original Intent? Part III Excerpts from correspondence of members of the
First Federal Congress -- July 5, 1789 to August 18, 1789
Original Intent? Part IV Excerpts from correspondence of members of the
First Federal Congress -- August 19, 1789 to October 2, 1789
September 27, 1789 (Amendments)
My third letter to you on the 14th. inst. will satisfy you how little is to be expected from Congress that shall be any ways satisfactory on the subject of Amendments. Your observation is perfectly just, that right without power to protect it, Is of little avail. Yet small as it is, how wonderfully scrupulous have they been in stating Rights! The English language has been carefully culled to find words feeble in their Nature or doubtful in their meaning!
Source of Information:
Richard Henry Lee to Patrick Henry, 27 September 1789, Miscellaneous Manuscripts, DLC. Creating The Bill of Rights. The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University Press, Baltimore & London, (1991), pp 296-97.
October 2, 1789 (Amendments)
You will find our Amendments to the Constitution calculated merely to amuse, or rather to deceive.
Source of Information:
Thomas Tudor Tucker to St. George Tucker, 2 October 1789, Roberts Autograph Collection, Haverford College, Haverford, Pennsylvania, Creating The Bill of Rights. The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University Press, Baltimore & London, (1991), pp 300.
One could say that just about any alliance or union between church and state was, in Madison's opinion an establishment of a state/national religion. A person has to understand that when they point to Madison's use of the word national.