What the Founders Believed About Separation of Church and State
Tom Peters

Introduction

In this section we look at the legal and historical basis for separating church and state. We present our case under two main headings:

The legal basis for separation:

The Constitution: The argument for the separation of church and state begins, not with the text of the First Amendment, but with the nature of the Constitution to which those amendments are attached. In this section we suggest that the Constitution, even in the absence of the First Amendment, grants no ability to the federal government to aid religion. We present two arguments to this effect: (1) that the principles of federalism, coupled with the widespread distrust of the central authority among the states, would have made it extremely unlikely that the states would grant to the federal government any power over religion, and (2) there is no evidence of such delegated power in the text of the Constitution.

The Bill of Rights: In this section we present evidence suggesting that the religion clauses of the First Amendment are meant to be taken broadly. Again, we present two arguments: (1) there is no grammatical reason for reading the establishment clauses narrowly, and (2) Congress rejected versions of the First Amendment that would have instantiated the narrow reading.

The historical basis of separation

Statements by the Framers: In this section we present evidence suggesting that the framers believed in separating church and state.

Statements by the framers

Federalism and state establishments

Research and writing by Tom Peters

In this article we will first define federalism and then explain its relevance to the debate over church/state separation.

Definition of Federalism:

Federalism is a mode of political organization that unites independent states within a larger political framework while still allowing each state to maintain its own political integrity (Encyclopedia Britannica, 1994, vol. 4, p. 712). While the distribution of power between states and the federal authority will vary from system to system, all federal systems preserve the ability of state governments to decide matters of local importance without interference from the federal superstructure.

In the American system, for example, the states are considered to be the source of political power; it is the states that call the federal government into existence, and it is the states that have the right to legislate on matters of local concern. Conversely, the federal government enjoys delegated power, i.e., power that the states hand over to the federal government for the purpose of dealing with issues of national scope. Critically, the federal government is limited to these delegations of power; in the absence of a delegation, the federal government has no lawful ability to act. Our Constitution was set up this way to ameliorate the general concern of the framers that a federal government would try to expand its power at the expense of state autonomy.

Relevance to the debate

The issue of federalism points up an extraordinary historical improbability that lies at the very center of the accomodationist position. Putting aside such technical issues as the history of the establishment clause, the grammar of the First Amendment, and the like, the accomodationists argument requires us to believe that the states --who otherwise jealously guarded their sovereign rights, and who were utterly suspicious of federal authority--delegated to the federal government expansive power to interfere with their internal policies on religion. We believe this argument is implausible on it's face; moreover, it ignores the heated nature of the struggle within states to work out their own policies over religious establishments.

As even a cursory review of Colonial history suggests, battles over state establishment were hard-fought and divisive; states would often struggle for years to hit on a policy that preserved the peace in their often religiously diverse populations. Nor was there any consistency to these policies; at time of the federal Constitution some states had long histories of religious freedom, others had what are commonly referred to as multiple religious establishments, while others were in periods of transition. Beyond this, the states had been exercising control over spiritual matters for centuries; there was no felt need (and certainly no precedent) for the states to look to a centralized authority to help them organize their religious affairs. Hence, it is unlikely that the states would have approved a Constitution that gave the federal government the power to aid religion on a non-preferential basis; such aid would have effectively compromised the ability of each state to work out a church/state relationship that satisfied its own needs.

Historical examples:

Virginia: in 1786 Virginia enacted Jefferson's "Bill for the Establishment of Religious Liberty." Virginia's enactment disestablished the Anglican Church, outlawed all public assessments for religion, and placed the various religious denominations on an equal legal footing. As documented by historian Thomas Curry (The First Freedoms, pp. 134-138), the debate over disestablishment was protracted and intense, and it turned on the general feeling that requiring people to support religion against their will was a violation of religious liberty. Given these facts, how likely is it that the state of Virginia would--the very next year--turn around and support a Constitution which granted the federal government the power to provide non- preferential aid to religion? Non-preferential aid, by definition, requires people to support religions with which they do not agree, precisely the point at issue in the Virginia debate. It is doubtful, in other words, that Virginians would have approved the Constitution if they understood it to do what accomodationists say it did.

Massachusetts: in 1780 Massachusetts adopted a Constitution that reenforced and extended that state's Protestant religious establishment. As Curry notes (The First Freedoms, pp. 163 ff.), this Constitution required Catholics to contribute to Protestant churches, and effectively barred Catholics from public office (quite in keeping with the popular religious sentiments of the time). How likely is it that Massachusetts would have accepted a Constitution that would have allowed the Federal government to aid the Catholic church as part of non-preferential distribution of funds? Non-preferential aid, no matter how widely distributed, would have diverted at least some funds to Catholicism. Again, we think this scenario highly unlikely.

The same argument can be made with respect to any of the remaining states; it is simply not plausible that the states, who had a vested interest in maintaining their own religious policies (policies that had been formulated with the state's religious history, attitudes, and temperament in mind) would have ceded even a shred of power over religion to the federal government. The suspicion with which states viewed federal authority is a well documented finding of Constitutional history; to suggest that the states made an exception in the case of religion--a subject that produced impassioned debate whenever it was discussed in the colonies--is, in our view, untenable.

No reason for granting power:

Our point is made stronger by noting that accomodationists have been unable to suggest a plausible reason for supposing that the framers would have granted the federal government power over religion in the first place. What purpose would it serve to give the federal government to aid religion, even non-preferentially? As even accomodationists note, religion was a matter of disagreement among the states; establishment of a national church would surely have torn the young nation apart. Would not have non-preferential aid done the same? Aid to Baptists in Connecticut? Aid to any religion in a state that had abolished establishment? Aid to Deists and Unitarians almost anywhere? Would not this have caused many of the same problems the framers sought to avoid by prohibiting the establishment of a single, national religion? And why involve the federal government in aiding religion when each state was perfectly capable of appropriating its own money for that purpose if it so chose? Even in the absence of our knowledge of state distrust of federal power, in other words, there is little reason to suppose the framers would have considered giving the federal government power to aid religion.

Our conclusion, then, is that the widespread distrust of federal power, distrust that manifested itself in the creation of a federal system of government, would make it unlikely that the states would grant power over religion to a central authority. On the contrary, the states had a vested interest in protecting their own church/state arrangements, and federal power to aid non- preferentially would surely have disturbed these arrangements. There is simply no good reason for thinking that the states would have vested the federal government with power over issues that were better handled at the state level.

Absence of delegated power

Research and writing by Tom Peters

Beyond the historical improbability that the states would have approved a Constitution that delegated religious power to the federal government, there is the issue of finding such a delegation in the text of the Constitution. While scholars can point to delegations of federal power to, eg., lay and collect taxes (Art. I, sec. 8), make treaties (Art. II, sec. 2), and adjudicate disputes between the several states (Art. III, sec. 2), the Constitution is silent on matters of religion. The only exception to this silence is a separationist one: Article VI, paragraph 3 specifies that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." If the framers had wanted the federal government to have the power to aid religion, they would have made that delegation of power explicit. Instead, the absence of delegated power in the area of religion is both obvious and, given the importance of religion in the colonies, striking.

Additionally, we note that it is not simply our opinion that the Constitution delegates no power over religion. On the contrary, this was the belief of both the framers of the Constitution as well as the ratifying conventions in the several states. Below we document, first, that the framers believed that the federal government was limited to delegated powers and, second, that the framers did not believe the Constitution delegated power over religion.

The limited nature of federal power:

The absence of delegated powers in certain critical areas of government was an important selling point for the Constitution. James Madison, the primary mover behind the First Amendment, for example sought to assuage the worries of the anti-federalists that the central government would expand beyond its Constitutional boundaries by arguing as follows:

Similarly, Constitutional historian Leonard Levy notes that the limited nature of the powers granted to the federal government in the Constitution was the primarily reason that the original Constitution did not contain a bill of rights:

No federal power over religion:

As Levy goes on to note, when the Constitution was submitted to the original thirteen states for ratification, this argument was used explicitly to defend the Constitution's lack of a guarantee of religious freedom. Levy summarizes some of the more important of these instances as follows:

Nor was this understanding of the Constitution limited to those who attended the Constitutional convention. Identical arguments were made by such non-attenders as Issac Backus of Massachusetts, James Iredell and Samuel Johnston of North Carolina, and Thomas Tucker of South Carolina (see Levy's "The Original Meaning of the Establishment Clause of the First Amendment," in James Wood, ed., Religion and State, pp. 46-53).

There is particular irony in Backus' defense of the Constitution; Backus was an ardent Baptist and a staunch opponent of religious establishment. If anyone were to press for additional guarantees of religious liberty in the Constitution it would have been Backus, but he declined to support any bill of rights. Clearly, he did not believe the federal government had any ability to establish religion.

Concludes Levy:

In summary, the framers believed that nothing in the Constitution that would allow the federal government to legislate with respect to religion. Rather, there was a widespread understanding that the states had delegated to the federal government only limited powers, and the federal government had no ability to go beyond them. Nothing in the text of the Constitution suggests otherwise. Hence, the historical record makes untenable the accomodationist conclusion that the federal government had the ability to aid religion, even in the absence of the First Amendment.

The grammar of the establishment clause

As noted elsewhere in this site, much of the present controversy over separation has to do with the interpretation of the religious clauses of the First Amendment. In this section we present some grammatical reasons for thinking that the First Amendment should be interpreted as a broad ban on the power of government over religion. We will do this in two sections. First, we will present several grammatical arguments in favor of the broad interpretation of the First Amendment. Second, we will address the most important grammatical arguments in favor of a narrow reading.

Responses to grammatical arguments in favor of a narrow reading.

Legislative history of the religion clauses

Research and writing by Tom Peters

If, as accomodationists want to argue, the purpose of the First Amendment was simply to bar the establishment of a state church, then one would expect to see evidence of this intent in the framing of the Amendment. In fact, the framers rejected versions of the First Amendment that would have done nothing more than bar the establishment of a state church. Rather, the framers adopted what is arguably the broadest of the proposed versions. (All information in this section is taken, unless otherwise indicated, from Leonard Levy, "The Original Meaning of the Establishment Clause of the First Amendment," in James E. Wood, ed., Religion and the State, pp. 43-83. For other discussions of the framing of the Amendment, see Thomas Curry, The First Freedoms, ch. 8, and Douglas Laycock, "'Nonpreferential' Aid to Religion: A False Claim about Original Intent," William and Mary Law Review, vol. 27, pp. 875-923. Additionally, please consult our online collection of all the mentions of the religion clauses recorded in the Annals of Congress and the Senate Journal for the first Congress.)

The House debates:

James Madison introduced the first version of the Amendment in the House of Representatives in 1789. The version read as follows: "The civil rights of none shall be abridged on the account of religious belief, nor shall any national religion be established, nor shall the full and equal rights of conscience in any manner or on any pretext be infringed." A House subcommittee immediately edited out the word "national" from Madison's proposal. A variety of additional versions were proposed and debated; none of these versions contained the word "national," or can be construed to bar only the establishment of a national religion. After further debate, the House approved the following, clearly broader, amendment: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." The first two thirds of the proposal are similar to our present version of the First Amendment; nothing in the proposal seems independently to authorize Congress to aid religion in any way.

The Senate debates

The House amendment went to the Senate in August. On September 3 the Senate took up three alternatives to the House language. The wording of these versions were as follows:

None of these versions passed muster. Instead, the Senate approved the following, much broader, language: "Congress shall make no law establishing religion." Six days later the Senate returned to the Amendment for the final time and approved the following: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." The Senate, in other words, rejected three versions of the First Amendment that would have codified the accomodationist position (i.e., the barring of a national church, and little else) in favor of a version that, while not as broad as the House proposal, was no longer narrowly focused on the establishment of a "sect," "society," or "denomination."

The conference committe debates:

Given the approval of different versions of the Bill of Rights by the House and Senate, a conference committee was created to resolve differences. The House members of the committee (headed by Madison) flatly refused to accept the Senate version of the religion Amendment, thereby "indicating that the House would not be satisfied with merely a ban on preference of one sect or religion over others" (Levy, "The Original Meaning of the Establishment Clause," p. 60). The Senate conferees then abandoned the Senate proposal, and the current version of the Amendment was adopted.

The history of the framing of the First Amendment, in other words, gives little support to the accomodationist position. The House never considered a version of the Amendment that codified the accomodationist position. The Senate did consider such versions, but rejected them. In their place, the Senate approved a more broadly drawn Amendment that barred the establishment of articles of faith and modes of worship without reference to religious denominations. The final version of the Amendment was even more broadly drawn than the House version in that it barred not only an establishment of religion, but even laws respecting the establishment of religion (i.e., wording that further guaranteed that the federal government could not interfere with the religious affairs of the states). Clearly, Congress intended the First Amendment to do more than simply bar the establishment of a state church.

Some accomodationist arguments:

In response to this evidence accomodationists sometimes argue that, since Madison's original version of the First Amendment barred the establishment of a "national" religion, and since the Senate debated language to this effect, the House and Senate debates are evidence that Congress only wanted a narrowly drawn amendment. But this gets the process of interpretation backward; it makes the defeated versions of the amendment controlling over the versions that passed! Nor do accomodationists apply this argument consistently; several of the proposed versions contained language guaranteeing the "rights of conscience," i.e., the right of people not to be taxed to support religions with which they disagree. Does this not indicate that the framers wanted to bar non-preferential taxation in favor of religion? It does if one applies accomodationist logic consistently but, for some odd reason, accomodationists rarely leap to this conclusion.

Another accomodationist response is to quote statements by anti-Federalists (i.e., those who opposed the adoption of the Constitution and the Bill of Rights) to the effect that the proposed religion amendment still allowed the federal government power to act in religious affairs. In particular, when the proposed Bill of Rights came before the Virginia legislature for ratification, a group of eight anti-Federalist state senators (none of whom were framers of the Constitution or the Bill of Rights, and all of whom opposed Jefferson's bill for religious freedom) argued that, even with the religion amendment in place, the government could still tax people for the general support of religion, and otherwise interfere with state establishments. But this is to accept the deeply tainted opinions of the opponents of the Constitution in favor of the statements of the framers themselves. As Levy notes (The Establishment Clause, pp. 108-111), the anti-Federalists were desperate to scrap the Constitution in favor of a system that left state sovereignty intact; their strategy was to reinforce, by any means at their disposal, the fear that the federal government was nothing more than a monster in waiting. How better to do this than to suggest the religion amendments left the monster free to pounce? One simply cannot turn to statements like these--statements that have no counterpart in any other state ratification debate, and which vest Congress with powers that no one else at the time was able to see--as an authoritative interpretation of the establishment clause. Levy's conclusion, we think, is apt:

It is difficult to believe that those who rejected the establishment clause understood it better than its framers, that the Anti-Federalists knew better than Madison and his cohorts, and that those who supported establishment of religion in Virginia revealed the criteria for interpreting the limitation on Congress's powers.

© 1996

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