The Constitution and Separation of Church and State

Part I

Is there really a constitutional principle of separation of church and state? The words, "separation of church and state," do not appear anywhere in the Constitution. Is such a constitutional principle embodied in the constitution anywhere? In recent times some have claimed that separation of church and state was something "invented" by the Supreme Court in the late 1940's, or, "created" by Liberals in the 1960's.

We offer the following in evidence to support the claim that yes, such a constitutional principle does exist, and such a principle was embodied in the Constitution in 1787 and reinforced by amendment in 1789. What is provided here is not all that is available. There was a good bit of additional material that could have been added to what was provided, especially during the time frame 1810-1830, when repeatedly the delivery of mail, and Post Offices being required to be open, by law, for a period of time on Sundays, was a source of conflict between religious conservatives/traditionalists and the new government.

Because there is so much of that particular material, only a very small amount of it has been provided here. Cites of additional material on this particular subject can be provided to anyone who leaves a email message asking for such information.

September 25, 1789--

FIRST FEDERAL CONGRESS, In the House of Representatives.

Representative Thomas Tucker on Church and State

Thomas Tucker of South Carolina made a revealing statement about his beliefs concerning church/state separation toward the end of the first session of the first Congress to meet under the Constitution. Mr. Tucker's comments were occasioned by a proposal from Representative Boudinot of New Jersey to ask the President to proclaim a day of thanksgiving in honor of Congress' completion of its first session. The following is taken from the Annals of congress, Vol 1, 1789, pp. 914-15 (entry for Friday, September 25).

Mr. BOUDINOT (a Representative from the State of New Jersey) said, he could not think of letting the session pass over without offering an opportunity to all citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them. With that view, therefore, he would move the following resolution:

RESOLVED, That a joint committee of both Houses be directed to wait upon the President of the United States, to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, that many signal favors of almighty God, especially by affording them the opportunity peaceably to establish a Constitution of government for their safety and happiness.

Mr. BURKE, a Representative from South Carolina said he did not like this mimicking of European customs, where they make a mere mockery of thanksgivings. Two parties at war frequently sung TE DEUM for the same event though for one it was a victory, and to the other a defeat.

Mr. TUCKER, a Representative from the State of South Carolina, thought the House had no business to interfere in a matter which did not concern them. Why should the president direct the people to do what, perhaps, they have no mind to do? They may not be inclined to return thanks for a constitution until they have experienced that it promotes their safety and happiness. We do not yet know but they may have reason to be dissatisfied with the effects it has already produced; BUT WHETHER THIS BE SO OR NOT, IT IS A BUSINESS WITH WHICH CONGRESS HAVE NOTHING TO DO, IT IS A RELIGIOUS MATTER, AND, AS SUCH IS PROSCRIBED TO US. [Emphasis added]. If a day of thanksgiving must take place, let it be done by the authority of the several states; they know best what reason their constituents have to be with the establishment of this Constitution.

Mr. SHERMAN justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in HOLY WRIT: for instance the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example he thought, worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.

Mr. BOUDINOT quoted further precedents from the practice of the late Congress; and hoped the motion would meet a ready acquiescence. The question was not put on the resolution, and was carried in the affirmative: and Messers. Boudinot, Sherman, and Sylvester, were appointed a committee on the part of the House.

Source of information:

The Debates and Proceedings in the Congress of the United States (Annals of Congress) September 25, 1789, Vol. I, Joseph Gales, published by Gales and Seaton, Washington, 1834, pp 914-15)

At the time of Rep. Tucker's comments, The amendments to the Constitution, with its religious clauses, had been passed and was ready to be sent to the states for debate and ratification or rejection. The religion clauses would not become a part of the laws of this nation for another two years. Even though he lost the vote that day, Tucker was reminding his fellow Representatives that they were prohibited by the Constitution from involvement with matters concerning religion, and Tucker's acknowledgment of the principle of separation of church and state in Sept 1789 in the First Federal Congress became a part of the official record of that Congress. No mention is found of what the vote was or whom voted for or against. However the very next issue discussed was one concerning Invalid Pensioners, and the vote taken on what that was about showed who was present, 50 members, who voted for and who voted against and the total of the vote, 28 to pass, 22 against that issue. It is interesting that no such tally is shown for the Thanksgiving issue. Only a simple majority was needed, so we have no idea how many voted who voted and who voted which way.)

This was George Washington's response when asked why there were no mentions of, nor requirements pertaining to religion or Christianity included in the Constitution:

October 1789

To the Ministers and Ruling Elders delegated to represent the churches in Massachusetts and New Hampshire, which compose the First Presbytery of the Eastward.

The tribute of thanksgiving which you offer to the gracious Father of lights, for his inspiration of our public councils with wisdom and firmness to complete the national Constitution, is worthy of men who, devoted to the pious purposes of religion, desire their accomplishment by such means as advance the temporal happiness of mankind. And here, I am persuaded, you will permit me to observe, that the path of true piety is so plain as to require but little Political attention. To this consideration we ought to ascribe the absence of any regulation respecting religion from the Magna Charta of our country.

To the guidance of the ministers of the gospel this important object is, perhaps, more properly committed. It will be your care to instruct the ignorant, to reclaim the devious; and in the progress of morality and science, to which our government will give every furtherance, we may expect confidently, the advancement of true religion and the completion of happiness. I pray the munificent rewarder of every virtue, that your agency in this good work may receive its compensation here and hereafter.

George Washington.

Excerpt from a letter written by G. Washington, October 1789. George Washington & Religion, By Paul F. Boller, Jr.. Southern Methodist University Press, Dallas, 1962, pp 180-181

(Unless otherwise indicated originals or original copies of all the George Washington letters can be found in The Papers of George Washington, Library of Congress, with the proper volume and page number following each excerpted letter: i.e., Papers, CCCXXXIV, 80.)

Alexander Hamilton (1757-1804), Secretary of the Treasury cites one of the reasons for a separation of Church and State in his well-known report on manufactures submitted in obedience to an order of the House of Representatives of January 15, 1790 (excerpted here),

January 15, 1790

IV As to the promoting of emigration from foreign countries. Men reluctantly quit one course of occupation and livelihood for another, unless invited to it by very apparent and proximate advantages. Many, who would go from one country to another, if they had a prospect of continuing, with more benefit, the callings to which they have been educated, will often not be tempted to change their situation by the hope of doing better in some other way. Manufacturers, who (listening to the powerful invitations of a better price for their fabrics, or their labour, of greater cheapness of provisions and raw materials, of an exemption from the chief part of the taxes, burdens and restraints, which they endure in the old world, of greater personal independence and consequence, under the operation of a more equal government, and of, what is far more precious than mere religious toleration, a perfect equality of religious privileges) would probably beck from Europe to the United States to pursue their own trades or professions, if they were once made sensible of the advantages they would enjoy, and were inspired with an assurance of encouragement and employment . . .

Source of information:

American Museum, XI, 10 (January 1792). Church and State in the United States, Volume I, Anson Phelps Stokes, D.D., LL. D., Harper & Brothers, New York, (1950) pp 276).

Madison's interest in preserving the separation between Church and State led, as we shall see later, to his having some misgivings regarding Federal Thanksgiving Day proclamations. (294) It also led to a very interesting debate in the House of Representatives, February 2, 1790, when the question of the Federal census was under consideration. The bill, as reported, provided for the enumeration of farmers, mechanics, and other groups, but did not include the learned professions. Theodore Sedgwick of Massachusetts (1746-1813) suggested that it should "specify every class of citizens, into which the community was divided, in order to ascertain the actual state of the society." Mr. Madison, in his reply, said:

FEBRUARY 2, 1790

HOUSE OF REPRESENTATIVES

The gentleman from Massachusetts has asked, why the learned professions were not included? I have no objection to giving a column to the general body. I think the work would be rendered more complete by the addition, and if the decision of such a motion turned upon my voice, they shall be added. But it may nevertheless be observed, that in such a character they can never be objects of legislative attention or cognizance. As to those who are employed in teaching and inculcating the duties of religion, there may be some indelicacy in singling them out, as the General Government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this, in ascertaining who, and who are not ministers of the Gospel. Conceiving the extension of the plan to be useful however, and not difficult, I hope it may meet the ready concurrence of this House. (295)

Here, as in the case of the Thanksgiving Day proclamations, he had some question as to the advisability of including a reference to ministers of religion in the census because of his strong belief in the entire separation of Church and State. He was no extremist in such matters if the fundamental principles of separation were observed, and his sense of what was fitting led him to see that the arguments in favor of both actions probably outweighed those against them. The case of chaplaincies to be supported from public funds seemed to him more serious and he opposed their appointment. His reasons were stated at some length in an essay on the subject first printed only a generation ago. He asked the question, "is the appointment of chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom" Madison made it clear that his opposition to the chaplaincy, whether in Congress or in the Army and Navy, was not to having services for these groups but to their being conducted as a function of government and paid for by public funds. Similarly, he opposed the incorporation by the Federal government of religious institutions, believing that such action would tend to break down the "wall of separation" between Church and State. He sent special messages to Congress vetoing proposals for incorporating the Episcopal Church in Georgetown near Washington, and also for setting apart land in Mississippi territory for a Baptist congregation. (297)

Footnotes

(294) The Writings of James Madison (Hunt Ed.) XX 9, (2)

(295) Debates and Proceedings of the Congress of the United States (Washington 1834) I, 1106-1108 Joseph Gales Sr.

(296) Harper's Magazine March 1914 (297) XXII, 3, (4)

Source of information:

Church and State in the United States Vol. I Anson Phelps Stokes pages 346-347 Harper & Brothers New York, (1950)

After the adoption of the Constitution, Congress continued to enact legislation which cleared away loose ends in many areas of life, including jurisprudence. The Act of Congress of April 30, 1790 entitled "An act for the punishment of certain crimes against the U.S." dealt with one such. In Section 3 of Chapter VII. Religious Freedom After 1787 of his book Church and State in the United States, Anson Phelps Stokes comments on:

"The Abolition of 'Benefit of Clergy' by Congress (1790)"

In colonial days most of the colonies gave certain special legal rights to clergymen, including that of a trial before an ecclesiastical court in many cases where laymen would have to appear before a civil court. Such cases, when exempting a clergyman from criminal process, are generally referred to by a term common in the Middle Ages, "benefit of clergy." This was abolished, as far as proceedings in Federal courts were concerned, by the Act of Congress of April 30, 1794 entitled "An act for the punishment of certain crimes against the U.S." Section 31 of that act provided "That the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death." This action set a Precedent which virtually removed this ancient form of clerical privilege from use in Federal jurisprudence. The Act of 1790 was carried into the revised statutes, where it reads: "The benefit of Clergy shall not be used or allowed upon conviction of any crime for which punishment is or shall be declared to be death. (25) Although the section was repealed in the criminal code of 1909, this is only a technicality, as the Senate report on the criminal code indicates that it was merely "omitted as obsolete." The omission has become so well established that it no longer needs to be stated. (26) The Act of Congress of 1790 was and is a direct evidence of the desire of the founders of the government to carry out their ideals of Church and State separation.

Reminiscences of the old custom, however, remained for a short time in certain states. For instance, in North Carolina it was specifically recognized by law as late as 1837. (27) AS late as 1844, a criminal defendant was denied benefit of clergy only because he had 'received his clergy' on three previous occasions. (28)

The following are Mr. Stokes' footnotes:

(25) American Devotion, E, Stacy Mahtney, 3rd edition, COLUMBUS, OHIO (1940) op.cit.p 79.

(26) The Records of the Federal Convention of 1787, 3 Volumes New Haven 1911, Revised edition 4 Volumes New Haven, 1937 by Max Farrand, op. cit. p 297.

(27) VIII, 2.

(28) VIII, 5

Source of information:

Church and State in the United States Vol. I Anson Phelps Stokes page 493. Harper & Brothers New York, (1950).

See Part II of this topic for additional reference materials.