Does the First Amendment Separate Church and State?
Delaware Senatorial candidate Christine O'Donnell's recent comment—wondering whether "separation of church and state" is "in the First Amendment"—raises a serious point that has escaped both O'Donnell and her many critics: that Thomas Jefferson's use of the phrase "separation between Church & State" in an 1802 letter was actually a narrowly focused explanation of the Amendment, whose full breadth probably would displease O'Donnell even more.
It's true, of course, as many commentators have pointed out, that the words "separation," "church," and "state" do not appear in the First Amendment. Instead, the First Amendment's opening sixteen words stipulate that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Jefferson's language about the separation of church and state came in a letter he sent to Connecticut's Danbury Baptist Association in 1802 to thank them for an earlier greeting. He assured the Baptists that he believed, just as they did, "that religion is a matter which lies solely between Man & his God." This was why, Jefferson wrote, "the whole American people" had ratified a constitutional amendment so "their legislature (Congress) should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."
Jefferson used the phrase "building a wall of separation between Church & State" not to limit the Amendment to this wording—something not within his power in any case—but simply to offer one practical construction of the Amendment's broad language about "establishment" and "religion."
Modern constitutional conservatives, such as Chief Justice William Rehnquist (in his 1985 dissent to Wallace v. Jaffree), often argue that the First Amendment meant only to prohibit establishing a national church, while permitting government to pursue other engagements with religion. But this position is hard to reconcile with the fact that Congress, in writing the Amendment, specifically rejected narrow language merely forbidding a national church.
In June 1789 Congress declined a proposal from James Madison for a constitutional amendment about religion that said, "nor shall any national religion be established." In September 1789, Congress rejected several additional proposals for a narrow religion amendment. These would have prohibited establishing "one religious sect or society in preference to others," or "establishing any religious sect or society," or "establishing any particular denomination of religion in preference to another."
In the final version of the First Amendment, congressmen and senators used the broader word "religion," and when discussing the issue of "free exercise" of religion they never limited its meaning to Christianity or Judaism.
No wonder. The new states in the 1790s already exhibited exceptional religious diversity—at least twenty-five different versions of Christianity, plus Judaism and Islam—and Americans seemed more fascinated than worried about religious diversity. In 1784 Hannah Adams of Medfield, Massachusetts, found a huge audience for her book "Alphabetical Compendium of the Various Sects which have Appeared in the World from the Beginning of the Christian Era to the Present Day."
Americans also knew that even modes of church establishment could be diverse. In Massachusetts and Connecticut, establishment occurred through a complex combination of state legislation and local option. In the South establishment meant supporting the Church of England (the "Episcopalian" Church after the Revolution), but also could involve suppression. Between 1765 and 1775 Virginia jailed and whipped Baptists to stanch competition with the Church of England. "Multiple establishment" could provide aid to several groups simultaneously, a scheme Patrick Henry proposed for Virginia in 1784, but which the Virginia legislature rejected before passing Jefferson's broadly tolerant Statute for Religious Freedom in 1786.
Perhaps this is why the 1789 wording of the First Amendment spoke abstractly about "an establishment," suggesting that the words meant any kind of establishment.
So, yes, the First Amendment did refer to the separation of church and state. Jefferson used the phrase to explain one, but only one, meaning of the first principle in a remarkable two-part Revolutionary-era achievement: that the new federal government would "make no law respecting an establishment of religion" and that it also would guarantee "the free exercise thereof."
No other nation, much less a new one, had ever dared divorce religion from government so completely, and Congress fittingly used the concepts of "religion," "establishment," and "free exercise" broadly, not narrowly.
This is why we still argue about the subject. We actually know a lot about Congress's precise intent with its broad constructions, although we always want to know more. But mainly we're still trying to figure out what these concepts mean for us and for our nation today.
This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.
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Elizabeth Cregan - 11/6/2010
I have to wonder why so many people jump to a letter written by a man who had little if anything, to do with the writing of the document, not to mention a letter written so many years later. When the Constitution was written, there was also writting plenty of material that provides everything you need to know about intent. Between Madison's diaries of the convention and the Federlist/Anti Papers, one is left with few questions as to intent. Why don't more people go to the debates of the time? Send people to a proper source and they will learn more than they ever planned on.
I hear a lot of people talk about our "living" constitution, as if the document is what is so grey. The constitution is pretty black and white, it is the supreme court and judicial review that are marred by the grey areas of men tied to the time in which they lived.
Angelika Preston - 11/1/2010
I'm sorry but there is a line between tradition and religion. Christmas is a tradition well oiled by retailers. Religion at this point has nothing to do with it. It is the subjugation of these traditions that has caused the rage to allow for a movement that is intent on imposing their religious beliefs. Thanksgiving is founded on religious principles. Giving thanks. Guess to who. If we don't recognize Christmas then we should not recognize Thanksgiving. Where does it stop? When all traditions are hidden from the public view? Or is it simply a matter of waiting for one religion to win the war? All inclusiveness leads to a form of suppression of all. Continue to muzzle individuals and you will build a rage among them that will come to no good. And yes, preventing a public figure from saying Merry Christmas publicly is suppressing them. It is historically evidenced repeatedly and this country is no exception. It is called fear.
Openness is the enemy of subversion.
Stephen Barber - 10/26/2010
Did government officials in RI ever exhibit religious ideas and commemorations? Did the colonial or state legistlature ever pass resolutions of thanksgiving, prayer, and fasting? I'm not arguing...I am asking because I really don't know.
Stephen Barber - 10/26/2010
Yes, but the 14th Amendment does not rebuke the intent of the founders. It shows the evolution of government policy and practice. Should we then incorrectly teach that the 1st Amendment did not originally apply to the states and that states continued to have established relgion long after the ratification of the 1st Amendment?
Michael Furtado - 10/25/2010
The 'shock' displayed by the law students was not a response to hearing that the literal phrase 'separation of church and state' was not in the First Amendment, but to the revelation that a candidate for a seat in the US Senate did not realize that the concept is based on the language of that Amendment. In fact, there was laughter at her expense over the exchange.
My own home state of Rhode Island was among the first of the colonies to establish the principle of free exercise of religion and prohibiting government interference with religion.
Jonathan Dresner - 10/25/2010
The 14th amendment, though, makes the state-level argument moot.
And even a secularist like myself recognizes a difference between vaguely religious rhetoric and specific religious policy.
Robert Solomon - 10/25/2010
There is a difference between a law maker or a President having a religious view, and "establishing" that view. Indeed, one may draw a line between the state and all religious activity - for religious reasons, if that is your motivation. And you are free to express it. The crossing of that line is murky for precisely this reason. All the members of a government body may politely wish each other a merry christmas, but they should not use the apparatus of the state or public money to convey christmas greetings to one and all, or to have a nativity scene.
Lisa Kazmier - 10/25/2010
You would distort the clear intent of "no establishment clause" to deny it has anything to do with separating religion from government. The ban on lawmaking makes it clear the government is NOT GETTING INVOLVED. Therefore any attempt to control people's behavior out of a moral or religious perspective has the same problem. Ms. Anti-masturbation cannot make law to monitor people's lives. Duh.
Stephen Barber - 10/25/2010
Another point is that we must also pay attention to other historical facts. Many on the left don't know that the First Amendment did not originally apply to the states. Some states, like Massachusetts, did not disestablish the church until the early 1800s. Seems that Congress wanted to let states handle their own issues regading establishment. Many on the right hold the Rehnquist view, even more rigidly than he. This causes, in some cases, a distorted pro-Protestant view of the federal government. One must ask, however, why so many people in the federal government, and even Congress, continued to invoke the name of God in statements and resolutions if the original intent was to separate state from any vestige of religious expression.
George Allen - 10/25/2010
I applaud the effort of this author to point out the obvious - the words "separation of church and state" do not appear in the Constitution anywhere. Most people who pay attention know that these were words of TJ in a letter written to a private group - NOT A PART OF THE US GOVERNMENT DOCUMENTS.
What scares me is how over time we have so trained our students on this perspective that a group of law students would be shocked when they heard a congressional candidate say that those words were not in the Constitution. THEY ARE NOT.
Of course we can argue what was the intent of the first amendment - and this is very important. We must argue the meaning.
However, in our arguments, we must make sure that we do not associate text that was not present in the Constitution with the Constitution.
Image if I were popular the most popular civics teacher in the world and I was somehow able to change the common thinking that the constitution said "... and any man enlisted in said militia has the right to bear any and all arms necessary". While many people may applaud that addition of a condition to whom may carry arms, it would simply not be true - and should not exist in the dialogue as such. Very well it may be used as evidence in an argument about the constitution, much like TJ's letters are used.
To wrap it up. My main concern here is that we teach accuracy. Any amount of evidence for argument should be admissible if we are sure to point out that it isn't in the document itself!
George Shriver - 10/25/2010
Jon : Excellent on our "lively experiment". Madison's "line of separation" is a better phrae but with today's exploded pluralism, perhaps the best phrase is " separation of religious bodies and government". Thanks again. There is far too much irrationality in our society presently.
George H. Shriver
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