They were not about to attempt a declaration of the fundamental rights of humankind, and in particular they were not about to undertake the task of defining religious liberty and the proper scope of church-government relations.
As we shall see below, that consensus concerning a limited federal role in matters of religion carried into the thinking of the First Federal Congress as it worked to create a bill of rights. As directed by the Confederation Congress, national elections of presidential electors and representatives in the House were held in the winter of Senators were chosen by the legislature in each state.
The First Congress was overwhelmingly comprised of Federalists, at this point meaning those who had supported ratification of the Constitution, as distinct from Antifederalists who had opposed ratification.
The House had forty-nine Federalists and ten Antifederalists; the Senate had twenty Federalists and only two Antifederalists. Accordingly, the congressional debates in the summer of over what would eventually be called the bill of rights were not partisan in the modern sense. The leading figure, James Madison, later a Republican and ally of Thomas Jefferson, was at this point in the forefront of those Federalists working to pass constitutional amendments to submit for state ratification.
Throughout the debates over the Constitution, Federalists had insisted that a bill of rights was unnecessary and that Antifederalist fears were overblown. As James Wilson, a convention delegate from Pennsylvania, argued early in the ratification period, the central government simply was not delegated enough power in the first place to disturb unalienable rights.
While James Madison was a major figure in shaping the coming deliberations, it would fall to Fisher Ames of Massachusetts and Samuel Livermore of New Hampshire to propose the determinative word choices for the final religious liberty phrases. Indeed, it is fair to say that Madison lost more debates than he won over the fate of the religious freedom amendments.
Further, it would be a mistake to take views that Madison expressed in other venues and at other times and read them into the Religion Clauses, or to refer to the Religion Clauses as primarily the work of Madison.
He still did not agree that a bill of rights was needed to thwart potential abuses by the national government. With Old Originalism, one looks for the intent of the lawmakers, and hence one places high importance on the unenacted drafts that lead up to a law, as well as the point-by-point debate over the various wordings culminating in the final text.
Not so with New Originalism, which frees the interpreter from the greater subjectivity of the legislative process and focuses just on the final product. Still, what the lawmaking body thought it was doing and what it was not doing because of outside restraints does matter. This is because words are chosen to suit the agreed task. With that in mind, let us turn to the deliberations in the First Federal Congress that eventually yielded what we call the bill of rights, in particular the Establishment Clause.
On June 8, , James Madison introduced his proposed amendments in the House. This tack is further borne out by Madison seeking to interlineate the amendments into Article I, Section 9 of the Constitution, which is where negatives on national power are cataloged. Neither effort survived in the Senate. August 15 was the longest day for debate in the House over religious freedom. Benjamin Huntington, a Federalist from Connecticut, expressed concern that the amendment might upend the laws in his state levying religious taxes to pay ministers.
Both features passed without comment. The Senate met in secret. The motions and amendments from the Senate Journal are available, but the debate is not.
On September 3, numerous proposals bearing on religious liberty were entertained. Because the House and Senate versions differed, the matter went to a Committee of Conference. No record exists of negotiations in the Committee of Conference. The Conference Committee alteration did expand the sweep of the no-establishment prohibition. That is, in use of its powers delegated elsewhere in the Constitution, Congress could neither establish religion nor disestablish religion.
Hence, the text prevented congressional authority not only from establishing a national religion, but also from hindering or disbanding the remaining state establishments [41] —a federalism feature.
During the House debate, Huntington had expressed fear that the no-establishment phrase might be binding on states. The object of his fear was enforcement by the federal judiciary against states. Yet, never in the debate in the House or Senate did anyone voice a fear that Congress would make such a bold move.
In summary, as of September , the plain text of the Establishment Clause restrained Congress in two directions. First, Congress had no power to disestablish religion in the five or six states that still had established churches.
Second, Congress had no authority to use its powers otherwise enumerated in the Constitution to establish a national religion. The House considered the Report of the Committee of Conference on September 24, and it passed by a vote of thirty-seven to fourteen. On September 29, a preamble explaining the impetus behind passing the twelve proposed Articles of Amendment was inserted into the record of the Senate Journal:. The Conventions of a Number of States having, at the Time of their adopting the Constitution, expressed a Desire, in order to prevent misconstruction or abuse of its Powers, that further declaratory and restrictive Clauses should be added: And as extending the Ground of public Confidence in the Government, will best insure the beneficent Ends of its Institution—.
The stated task was to make it clear that the new central government had no power as to certain subject matters. This leaves it beyond doubt that the amendments vested no new powers in the federal government.
On the contrary, the bill of rights was merely to reassure Americans that the Constitution was not to be misconstrued so as to impute powers that were not delegated. Relations between government and church in the American states was a highly contested matter in Just a few years earlier, the states of New York and Virginia had thrown off their church establishments in widely reported contests, [46] as had other southern states with less notoriety.
Because of the pressing business of setting up a new government, many Federalists did not want to take the time to pass a bill of rights. Huntington, a staunch establishmentarian, said he agreed with Madison, a staunch separationist, on the meaning of the text prohibiting an establishment. This could be done effortlessly, for it did not require the resolution of any existing disagreements. This was the thinking of not only the Federalists, who were firmly in control, but of the Antifederalists, who agreed for other reasons on this limited task.
The general public appeared to have been aware of the limited object of the Third Article, and their quiescence on the matter shows that they apparently agreed. As the First Congress did its work, there were no petitions or letters appearing in newspapers. However, these private letters—while cynical—are fully consistent with a good faith effort to adopt a text leaving jurisdiction concerning church-state relations in the hands of the states, a placement of authority on which both Federalists and Antifederalists agreed.
The non-cynics would say the amendments were to reassure the American people that the new central government was not a danger to their interests.
In this the Federalists succeeded: the reporting out of the twelve proposed amendments put an end to any serious talk about convening a second constitutional convention. Once reported out by Congress in late September , the twelve proposed amendments were sent to the states for ratification.
The ratification process bears on how we understand the original public meaning of constitutional provisions. It should be acknowledged, however, that while states could approve some of the twelve amendments and not others, they could not alter the text of any given amendment. Yet there is little surviving history of the debates in state legislatures that sheds light on the meaning of the Establishment Clause. There are records from only two states. Massachusetts did not record any discussion about the Establishment Clause and ultimately did not ratify the Third Article.
The Virginia record, while scant and complex, is clouded by the posturing of Antifederalist state senators vaguely asserting that the amendments were inadequate to protect religious freedom. The criticism was never made any more specific. The senators were stalling, and the complaints are dismissed by historians as a last stand by Antifederalists disgruntled over the loss of state powers. The absence of popular pushback in the states to ratification of the Third Article is consistent with the understanding that the American public viewed the text as prohibiting any federal involvement in an establishment of religion, be it at the state or federal level.
In the First Congress, Federalists from New England and Federalists from elsewhere differed sharply concerning establishmentarianism. But they did not need one. That was never the task Congress had set for its members. The Establishment Clause would be binding only on the federal government, and Federalists did not envision the federal government having many dealings with the subject of religion. Given the religious pluralism across the thirteen states, there was no chance that a national religion would be established.
The real action concerning church-government relations was in the hands of the states, and all parties—especially the Federalists—anticipated that such relations would remain with the states. That is the only reason Congress could have agreed so easily on a text concerning church-government relations and reported it out as a constitutional amendment that Congress could realistically expect three-quarters of the states would ratify.
The Establishment Clause did two things, both thought to be rather modest at the time. First, it denied that there was power in the federal government to interfere with the remaining establishments in the states; structurally speaking, this made a vertical separation between the federal government and state-level religious establishments.
The latter was not controversial because no one wanted an established church at the national level. Even back then, there were too many religious differences across the thirteen states to make possible a full-on national establishment of religion. Nevertheless, there is substance in these words. The vertical restraint was federalist in character, telling Congress it could not disturb what the states did with respect to their church-state relations.
That restraint was destroyed in when Everson incorporated the Establishment Clause. There were many examples of supporting or auxiliary laws in England—laws that were not directly about ordering or governing the Church of England, but that supported it indirectly. For example, one had to be a member of the Church of England to receive a military commission or obtain a faculty appointment at Oxford or Cambridge.
Nonconforming clergy could not officiate at a marriage. These laws were clearly designed to support the Church of England establishment, but they were not part of the formal governance structure of the Church of England that entailed doctrine, liturgy, polity, administration of the sacraments, membership, sources of revenue, and property holdings.
In other words, the religious dissent was not just directed to the formal establishment of Congregational and Anglican churches, but also to the auxiliary laws that directly affected nonconforming Protestants. It was the full web of laws that prevented these Protestant clergy from preaching without a state license, preaching anywhere but at a government-approved meeting house, and officiating at a marriage of congregants.
To see how this understanding of the original public meaning would play out today, suppose we apply a few from this list of establishmentarian laws to a current setting. Subsequent decisions make clear that a majority of justices on the Supreme Court view "the wall" separating church and state more as a shifting, porous barrier.
Small factual differences in cases often produce different outcomes. For example, in , the Court ruled 8 -1 in McCollum v Board of Education that the practice of inviting religious instructors into public schools to give optional religious instruction violates the Establishment Clause.
Justice Black, writing for the Court, said that the practice was "unquestionably" a violation of the Establishment Clause, which created "a high and impregnable wall" between church and state.
The McCollum decision was the first victory ever for a plaintiff challenging state religious practices under the Establishment Clause. McCollum was distinguished in the case of Zorach v Clauson , raising the question of the constitutionality of off-premises religious instruction. In Zorach , the Court upheld the practice of giving public school students "release time" so that they could attend religious programs in churches in synagogues.
Writing for the Court majority in Zorach , Justice Douglas said the Constitution does not require "callous indifference to religion. The question of school-sponsored prayer has, of course, proven highly controversial.
In the landmark case of Engel v Vitale in , the Court ruled that New York's practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause. This is the case, the Court said, whether or not students are given the option of not participating in the prayer.
Baltimore Radio Show, U. See generally 16 C. Wright, A. Miller, E. As Justice William J. Brennan has explained:. A denial of certiorari is not an affirmance of the [lower] court judgment as some erroneously think. The denial does not mean that the Court agrees with the result reached by the [lower] court. The Court may very well take the next case raising the same question and reach a different result on the merits.
Lee v. Weisman, not Jones, is the law of the land, and Lee holds that graduation prayer is unconstitutional. Following the Supreme Court's denial of certiorari in Jones, a handful of federal courts have considered challenges to student-initiated graduation prayers. Although the outcomes of these cases have been somewhat mixed, the more well-reasoned decisions, including a decision by the Court of Appeals for the Third Circuit, have held that student-initiated graduation prayers run afoul of the separation of church and state required by the Establishment Clause of the First Amendment.
Federal courts in Iowa, New Jersey, and Virginia have held that student-initiated prayers of the type at issue in Jones are forbidden by the Establishment Clause. See ACLU v. Blackhorse Pike Regional Bd. June 25, ; Friedmann v.
Sheldon Community Sch. C N. Iowa, May 28, , vacated on standing grounds, Dkt. May 28, ; Gearon v. Loudon County Sch. June 21, , stayed pending appeal, Dkt. June 23, In Blackhorse Pike, the Court of Appeals for the Third Circuit enjoined a proposed student-initiated graduation prayer, noting that:. In Friedmann, the United States District Court for the Northern District of Iowa held that graduation prayers offered by authority of a majority student vote "run head on into the mandate of Lee v.
Weisman" and are constitutionally impermissible. Slip op. Likewise, in Gearon, the United States District Court for the Eastern District of Virginia found that a school district's protocol allowing students to vote for the offering of a nonsectarian, nonproselytizing graduation prayer violated the Establishment Clause. The Fifth Circuit's decision in Jones also runs contrary to the decisions of other federal courts of appeal and that have addressed the issue of student-initiated prayers at school-sponsored events.
In Jager v. Douglas County Sch. Likewise, in Collins v. Chandler Unified Sch. Treen, F. As these cases demonstrate, Jones relies on a crabbed reading of Lee that rests almost entirely on a distinction between school-initiated and student-initiated graduation prayer that is irrelevant to the analysis and result in Lee and that ignores the inherently coercive nature of a religious exercise conducted as part of an event convened and sponsored by the school. The fact that a majority of students may ask the school district to allow a prayer at graduation does not change the requirements of the Establishment Clause.
Indeed, the very purpose of the Establishment Clause is to prevent a majoritarian government from imposing particular religious beliefs -- or any religious beliefs at all -- on individuals in our society who do not share those beliefs.
See West Virginia Bd. Barnette, U. As Justice Jackson wrote for the Court in Barnette:. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
The entire premise of the Bill of Rights is that individual liberty must be safeguarded and must sometimes trump the desires of the majority. High school students, by majority vote, may no more use the machinery of the state to impose religion on a minority of dissenters than may a majority of students ask the school board to violate the First Amendment by engaging in censorship or violate the Fourth Amendment by engaging in unreasonable searches of students.
University of Virginia Engel v. Vitale ; Abington School District v. Schempp Although these decisions were highly controversial among the public less so among scholars , the Court has not backed down.
Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Doe In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers , the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith.
Town of Greece v. Galloway Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct.
Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs.
The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. Bullock , it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers.
Cutter v. Wilkinson The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers.
Hobby Lobby Stores, Inc. The cases involving governmental displays of religious symbols—such as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public land—have generated much debate. In Lynch v. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds.
Van Orden v. Perry Only one Justice was in the majority in both cases. More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic. An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right has been overstated.
In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams.
Franklin saw a pattern:.
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