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The First Amendment: Religious Freedom,
and Freedom to Speak, Print, Assemble, and Petition
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship……..MORE HERE
blogsense-by-barb 
Reblogged this on My Blog and commented:
If we ever get to the point where we let government tell us what, where and how we can practice our faith, our loss will be greater than just here on earth. Sooner or later we will have to face our heavenly Father and explain to Him why we did not stand for Him.
Indeed, but at the same time, since government didn’t give me my faith, government cannot take it away, either! It can try, but as long as I breathe, my heart will belong to God, and my motivations will come from my love for him and His love for me! I do think the Western definition of “Church” has been undergoing a change – a GOOD change, and it ill continue until we get to the Biblical definition of THE CHURCH! Whether the change comes voluntarily or … under duress, only God knows! Blessings, my friend!
Reblogged this on A Lot Of Coffee and Sleepless Nights.
Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.
That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.
Yes, but it was still enacted to protect one (primarily) Christian church from one another, and the general government. As Barb stated above there is no prohihibition of the individual states having eiher an established religion or a religious test for office. Both, while not common, existed at the time of ratification.
This is the essence of the free exercise clause. You are entirely free to worship whatever god you choose (even nature or to worship no god). What you MAY not do is to infringe anybody else’s rights as always, the founders were trying to guarantee liberty, defined as do whatever you want until you infringe on someone else, or scare the horses.
It is unconstitutional for Congress to support in any way a religious body, it is also unconstitutional for Congress to infringe on anybody’s religious freedom as long as it doesn’t violate civil or criminal law. The current instance is, of course, forcing the Roman Catholic church to finance, either directly or indirectly, infanticide.
But, we also need to realize that if a religious body advocates harm to another person, not under the civil law, that would correctly be prohibited. An example would be to allow the beating or mutilation of women. Since this would violate their rights as citizens, it is rightly seen as not a religious but a criminal matter.
Then there is also the instance of individuals wanting to impost Sharia law on American citizens. I cannot comprehend how this has not been struck down immediately! Sharia Law and the Constitution are not compatible, neither is Islam a “religion” any more than Communism is a religion.
Unfortunately, Barb, Islam does qualify as a religion as defined (we’ve had worse one in our history). I personally agree with you, it is at best a cult but, to protect ourselves we are required to protect the distasteful as well.
The US system of magnifying the individual (all individuals, including women and children) does however make Sharia with its extrajudicial punishments unconstitutional, as would be a ‘pagan’ sect who believed in human sacrifice.
🙂 yes, I understand that Islam is protected, and I have no problem with that except or until it comes to the establishment of Sharia. I do not, however. Think theirs should be uniquely or preferentially protected at the exclusion of Christian or Jewish practices. EQUAL protection under the Law! That’s all I want to see!
Completely agree 🙂
For many reasons, the notion that the First Amendment should only prevent government from supporting one sect over another simply does not square with the amendment’s language or evidence of the founders’ intent. First, note no mention in the text of “Christianity” or “sect” or anything of the sort. Second, note that the word “religion” is uttered once–setting the scope of both the establishment clause and the free exercise clause. If the text is read so that the term “religion” means only a “national Christian sect” or the like (thus limiting the scope of the establishment clause as Story supposes), violence is done to the free expression clause, which then would merely constrain Congress from making a law prohibiting the free exercise “thereof”–i.e., a national Christian sect–and leave it free to interfere with the exercise of any and all other religious beliefs. Silly.
While the founders were, no doubt, confronted with the need to address competition and conflict between a variety of sects (largely but not exclusively Christian) and some (but hardly all) founders were motivated by that perceived need to support separation of church and state, it is a non sequitur to suppose therefore that they intended merely to stop the government from favoring one “sect” (however defined), but leave it free to favor some (also undefined) grouping of sects (e.g., “generic” Christianity or perhaps monotheism, or theism, or deism, or some such).
Any such interpretation, moreover, would raise so many problems that I tire at the thought of listing them. For instance, where and how would one distinguish sects or groups of sects? Christianity comprises dozens or even hundreds of sects depending on how one draws the lines. And why stop with Christianity since there are other monotheistic religions? Would it be okay for the government to support Islam as long as it refrained from choosing the Sunni or Shiite sect? And even if one wished to stop with Christianity, how does one draw the line around that? For instance, some question whether Mormonism is a “Christian” sect.
While the First Amendment only limited the federal government, you fail to mention that the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights’ constraints to state and local governments.
It is instructive to recall that the Constitution’s separation of church and state reflected, at the federal level, a “disestablishment” political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term “antidisestablishmentarianism,” which amused some of us as kids.) It is worth noting, as well, that this disestablishment movement largely coincided with another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.
This sentiment was recorded by a famous observer of the American experiment: “On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point.” Alexis de Tocqueville, Democracy in America (1835).
First, did you miss the word primarily in my first sentence? Nothing I said would imply that they were referring to only Christians, My wording reflects the reality that the founders were PRIMARILY Christian, although there were several Jews and various flavors of deists in their number, also. Try reading what I write, not what you want to read.
I didn’t go into the 14th Amendment because it isn’t relevant to the discussion which was the founders’ intent, not the Reconstruction generations’ intent. By this point in our history I doubt there 2 dozen people who wanted either an established church or a religious test for office. I agree that it’s relevant today but, it’s not on point.
The disestablishment movement goes back farther than that, read the founding documents of Rhode Island. Yes, it is a boon to religion, to be out from under the stifling control of government, even as it is for the individual. And yes, I had a lot of chuckles as a kid at the term “antidisestablishmentarian”. I wasn’t sure if if I was in history class or German class.
And as nearly always, de Tocqueville is entirly correct.
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Apparently the Government is going to argue about changing or Removing the amendment, That’s stupid, People live by this amendment, It’s OBAMA that’s messed his world up.. OBAMACARE, Is ruining the chances for women to have birth control wth out having to sign a million and one papers, Voting against him on the 8th.