The conservative argument runs like this: the First Amendment's prohibition against "an establishment of religion" simply refers to a single church, like the Church of England. Thus, if the federal or the state governments aid several or all churches in promoting prayer in public schools, or providing public funds for all religious schools on a non-discriminatory basis, the framers would have approved.
Plausible? Yes, plausible, but false.
What an "Establishment of Religion" Meant in 1789
It is true that during the Reformation when the Roman Catholic Church was being displaced from its seat of power in the 16th and 17th centuries a single Protestant church was established by law in some of the national states of Europe: Lutheran in Scandinavia and northern Germany, Reformed in the Netherlands, Presbyterian in Scotland, and Anglican in England. In the early American colonies, single establishments were the rule in nine colonies, stronger in some and weaker in others: Congregationalism was established in Massachusetts, Connecticut, and New Hampshire; Church of England in Virginia, Maryland, North Carolina, South Carolina, and Georgia; and Dutch Reformed in New Netherlands until the English and Anglicans gained power in New York. No establishment was ever enacted by law in Pennsylvania, Delaware, Rhode Island, or New Jersey.But, by the end of the 18th century, "an establishment of religion" had taken on a new and distinctive meaning in America. Due to the influx and growing political power of an increasing number of different Protestant denominations and of Roman Catholics, multiple Christian churches were admitted to the "establishments of religion" in six of the original colonies, all of which had begun with single establishments.
In the course of the 18th century Anglicans and other Protestants were admitted to the establishment alongside the Congregationalists in Massachusetts, Connecticut, and New Hampshire; local option among Protestants established town majority rule in New York; and Catholics shared state support with Protestants in Maryland, whose Constitution of 1776
said "the Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion: leaving to each individual the power of appointing the payment over of the money, collected from him, to the support of any particular place of worship or minister....
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New Englanders were never so generous as to extend establishment
privileges to Roman Catholics. But, as early as 1727, Massachusetts began to allow Episcopalians to apply their religious taxes to their own ministers. Then, for nearly a century, the legislature authorized and required the towns, parishes, and other body politics to levy taxes for the
support of "public Protestant teachers of piety, religion, and morality." This principle of local option was embedded in the Massachusetts Constitution of 1780, thus leaving the relations of religion and government to the political process, on the assumption that religion was a matter for the local community to decide rather than for the individual. Everyone had to pay
religious taxes; a person could opt to have his taxes paid to his own minister--if he attended services regularly; but if he did not attend regularly, his taxes went to the "settled" minister who had been elected by majority vote of the local community.
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However, the most elaborate provisions for what I call a "multiple establishment of religion" were stated unequivocally in the constitution of Senator Strom Thurmond's own state. The South Carolina Constitution of 1778 could not have been more explicit:
It is clear that "equal privileges" meant that all authorized Protestant denominations would be entitled to tax support along with the Church of England. And the Constitution spelled out that the members of each church of the established religion of the state would have to subscribe to the following:
The record of Madison's views in the First Congress over the wording of the establishment clause of the First Amendment is particularly illuminating on this point. When he first introduced his proposals for a Bill of Rights on June 8, 1989, Madison proposed a double-barreled approach to religious
freedom: (1) prohibit Congress from establishing religion on a national basis and (2) prohibit the states from infringing the equal rights of conscience. It is clear that there were differences of opinion among the members of Congress. Naturally, some representatives and senators did not want their multiple establishments to be threatened by a bill of rights in the
new federal Constitution that would put restrictions on the states. But Madison did. And the majority in the House of Representatives supported Madison on both counts. It will not do to imply that the framers had only one intention.
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Under Madison's leadership, the House version that was approved and sent to the Senate on August 21, 1789 read "Congress shall make no law establishing religion." However, the first versions proposed in the Senate tried to retain the earlier and narrower prohibition against the establishment of a single church. One version stated "Congress shall make no law establishing one Religious Sect or Society in preference to others," and
another tried "Congress shall make no law establishing any particular denomination of religion in preference to another." These wordings would have permitted a multiple establishment at the federal level and would have preserved the existing state multiple establishments against future federal intervention, but they were not adopted by the Senate. The majority, even in the Senate, rejected all such attempts to narrow Madison's proposals and finally acceded to the wording of the conference committee, a wording that may have been Madison's own. What present-day conservatives argue was the "intention of the framers" was actually defeated two or three times in the Senate.
The point is that the House conferees led by Madison insisted on the broader and more liberal final version prohibiting any "law respecting an establishment of religion," and the Senate finally acceded to the wording worked out by the Conference Committee, consisting of Representatives Madison (Va.), Roger Sherman (Conn.), and John Vining (Del.) and Senators Oliver Ellsworth (Conn.), Charles Carroll (Md.), and William Paterson (N.J.). This is the phrase that was approved by both Houses in 1789 and ratified by eleven of the fourteen states in 1791. Massachusetts,
Connecticut, and Georgia (all with multiple establishments of religion) did not get around to ratifying the Bill of Rights until the Sesquicentennial of the ratification of the Constitution in 1939. Remarkably, five members of the Conference Committee were from "small states" jealous of their rights
and three from states that still approved multiple establishments of religion. Undoubtedly, some members read different meanings into the final wording, but Madison's intention was unmistakably clear.
True, the First Amendment did not restrict the states as it restricted Congress, but it is also true that the House, again under the leadership of Madison, formally approved and sent to the Senate an article of amendment that would have prohibited the states from violating the equal rights of conscience, trial by jury, or freedom of speech or the press. In his notable speech of June 8, 1789 when he introduced his proposals for the Bill of Rights, Madison spoke of these three great rights as "those choicest privileges of the people."
Madison's June 8 speech is a prime source of h intentions. It should be regarded as one of America's great state papers.
64 In this speech Madison at first proposed that the text of the Constitution itself be amended or enlarged rather than that the amendments should be added on at the end. This method of amendment was not adopted, largely on the plea that the original text should not be tampered with, but the point is important for understanding Madison's full intentions.
Interestingly, one of the major opponents of Madison's proposed method of amendments was Roger Sherman of Connecticut, a member along with Madison of the House Select Committee that had been appointed to consider the question of amendments. It has long been assumed that Sherman was generally opposed to a Bill of Rights in the federal Constitution. But the announcement as recently as August 1987 of the discovery of a draft of a Bill of Rights handwritten by Sherman in July of 1789 makes it clear that Sherman only opposed Madison's method of working the amendments into the text of the Constitution itself, not to the idea or substance of a bill of rights.
The discoverer of Sherman's draft, filed away in the Madison papers, was James C. Hutson, chief of the Library of Congress manuscript division. He stated:
Madison proposed, first, that several clauses be inserted in Article I, Section 9, of the Constitution. This is the section that puts limits on the powers of Congress. Madison proposed that the following clause on religion should be inserted immediately after the guarantees of habeas corpus and prohibition of bills of attainder and ex post facto laws:
Promotion of religion by government was outlawed if any individual claimed that his rights of conscience or any part of them were being jeopardized. If Madison's wording had been accepted, I do not see how anyone could argue that government could promote one religion over another or religion in general rather than non-religion. Madison used the phrases equal rights of conscience and liberty of conscience almost interchangeably. Not only was the individual to be free from governmental interference with his religious beliefs, he had the right not to be the subject of discrimination because of his beliefs; and his other civil rights were not to be put in jeopardy because of his religious beliefs or associations or lack of them. If one's rights of conscience are equal to all others, the absence of a
particular or any religious belief does not prejudice one's standing in law when compared with those who do have religious beliefs.
It is noteworthy that Madison was anxious to put limits upon the states as well as upon the Congress. This "original intention" seems to have escaped the notice of conservative revisionist historians. He proposed that the following clause be inserted in Article I, Section 10, which limits the powers of the states:
Listen to Madison himself on this point:
Madison believed that the protection of the rights of the people could not be left to the states alone. In our time, when it is urged that the relation of religion and education should be a local and state matter, and that educational control and support are local, parental, and state matters, it is important to remember that Madison would not have left the people's rights
of freedom and equality exclusively in local and state hands. Listen to him:
In our Government it is, perhaps, less necessary to guard against
the abuse in the executive department than any other; because it
is not the stronger branch of the system, but the weaker: it therefore must be leveled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.
It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.
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As the Supreme Court and federal courts in recent years have ruled against local and state majorities on questions of religion, segregation, loyalty oaths, and the other freedoms of speech and belief, I think Madison would have approved, for he said:
59. Lyman Bryson, An Outline of Man's Knowledge of the Modern World (New York: McGraw-Hill, 1960), p. 3. back
60. F. N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters and Other Organic Laws (Washington, D.C.: Government Printing Office, 1909), p. 1689. back
63. See Joseph Gales, ed., Annals of Congress (Washington, D.C.: Gales and Seaton, 1834), Vol. I; and for useful summaries, see R. Freeman Butts, The American Tradition in Religion and Education (Boston: Beacon Press, 1950; reprinted by Greenwood Press, 1974); and Religion, Education, and the First Amendment (Washington, D.C.: People for the American Way, 1985). back
64. This discussion of Madison is adapted from R. Freeman Butts, "James Madison, the Bill of Rights, and Education" in Teachers College Record, Vol. 60, No. 3, December 1958, pp. 123-128. back
65. The New York Times, July 29, 1987. back
66. Joseph Gales, ed., Annals of Congress, Vol. I, p. 451. back
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The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State .... All denominations of Christian Protestants in this State demeaning themselves peaceably and faithfully shall enjoy equal religious and civil privileges.
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The Constitution goes on to describe in great detail how every Christian Protestant denomination "either already formed or hereafter to be formed" shall be "ESTEEMED AND REGARDED in law of the established religion of the State, and on a petition to the legislature shall be entitled to be incorporated and to enjoy equal privileges."
Now, it is true that South Carolina still discriminated against Catholic Christians and non-Christians, but the idea of a single church as constituting "an establishment of religion" was no longer embedded in the legal framework of any American state when the First Amendment was being debated in Congress in the summer of 1789. Between 1776 and 1789 three states achieved disestablishment (New York, Virginia, and North Carolina). In all six of those states that still authorized establishments of
religion by law (Massachusetts, Connecticut, New Hampshire, Maryland, South Carolina, and Georgia), multiple establishments were the rule, meaning that several churches could share in tax funds for the support of their own religious views. In other words, citizens had a choice among established churches. In 1789 seven states, numbering the vast majority of Americans, had either disestablished their churches or had never established any. In the other six, tax funds could go to several churches, not just one. The founders and the framers could not have been ignorant of this fact; they knew very well that a multiple establishment is what the majority in the First Congress intended to prohibit at the federal level.
What Madison Intended
The principal framer of the First Amendment was especially aware of this meaning of "an establishment of religion," a phrase he often wed. The religious conservatives of Virginia tried in 1784 to revive the idea of multiple establishment in a tax bill modeled on an earlier conservative proposal of 1779 and remarkably similar to the South Carolina Constitution of
1778. Entitled a "Bill Establishing a Provision for Teachers of the Christian Religion," it would have included all Christians, not simply Protestants. James Madison fought it with all his powers. He argued forcefully and persuasively that an assessment on all citizens to pay teachers of religion (even a minister of one's own denomination) was clearly "an establishment of religion." He was able to marshal the liberal religious forces of Virginia to defeat the assessment bill and, instead, to pass Jefferson's historic statute for religious freedom in 1786. All this on the eve of the Constitutional Convention and adoption of the Constitution.Far from opposing Madison on the substance of a bill of rights, Sherman included in his draft many of the provisions contained in Madison's speech of June 8, 1789.... In places, he borrowed Madison's exact language. Although Sherman added some ideas of his own, his draft was an effort to condense and refine
Madison's original proposals. He was more of a collaborator than
an adversary of Madison.
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It may be significant that Sherman's draft regarding freedom of religion picked up Madison's stress on "the rights of conscience in matters of religion," but said nothing about prohibiting an establishment of religion. In view of Connecticut's establishment of religion, this might not be merely an effort to "condense" Madison's wording. It could have been an effort to
protect Connecticut's establishment. But, in the end, Sherman agreed with Madison on establishment, both in the proposals of the House Select Committee and in the final approval by the Senate/House Conference Committee. The "original intention" of some of the framers is still being discovered and revised.The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
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The emphasis here is upon the civil rights of religious belief and worship as natural, inalienable rights that could not be abridged by Congress. The strongest emphasis is put upon full and equal rights of conscience. The linkage of freedom and equality required that government not enter into the realm of religion in any manner or on any pretext. Before the law, a person's religious views or lack of them are to be deemed equal in rights to those of any other person. The government could not make distinctions or indicate preferences or priorities of one religion over another or prefer religion to the lack of it. Each individual was to be the judge of his own religious beliefs, and his conscience was to be respected even if he had no religious beliefs in the usual sense or even if he had anti-religious beliefs.No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.
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If Madison's proposals had been adopted, it could not have been argued that the First Amendment applies only to the Congress and not to the states. Madison's proposal would have asserted the power of the federal Constitution over questions of liberty and equality in the states and might have shortened the long and involved judicial procedures that have accompanied the incorporation of some elements of the original Bill of Rights
through the Fourteenth Amendment over the past several decades.I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, "No State shall pass any bill of attainder, ex post facto law," &c. were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the
community. I should therefore wish to extend the interdiction,
and add, as I have stated in the 5th resolution, that no State shall violate the equal rights of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.
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I believe that Madison would have supported the Supreme Court in applying the First Amendment to restrict the powers of the states as it did in the Everson and McCollum cases.
Madison said several times that the "great rights," "those choicest privileges of the people," were liberty of conscience, freedom of the press, and trial by jury. These should therefore be doubly protected in both federal and state constitutions. But Madison went much further than this. He spoke at some length on the desirability of looking upon the federal bill of rights as a
corrective of the bills of rights in the state constitutions. In the realm of civil liberties and civil rights, Madison clearly felt that the federal power should be supreme not only in law as interpreted by the federal courts but as a molder of public opinion in the community....Some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.
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In other words, republican principles and common ideas of liberty should take precedence over the will of local and state majorities. The best protection is to be found when bills of rights in the state and federal constitutions agree, but when they disagree, the federal constitution should be the corrective for the states. Listen again to Madison:
But whatever may be the form which the several States have
adopted in making declarations in favor of particular rights, the
great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.
Here is a clear vision of the positive role of a free government in protecting the rights and liberties of individuals. Freedom is not merely something to be protected against invasion by government; it is something that governments must protect against violation by one group or individual at the expense of others in the community. States should protect local minorities against local majorities. But, also, the federal government must protect minorities in a state against majorities in a state.If they [bills of rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people's liberty. I conclude, from this view of the subject, that it will be
proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.
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But the more conservative Senate would not agree to this restriction on states' rights and thus delayed a positive civil rights and civil liberties role for the federal government for many decades. Nevertheless, the six older states that had not already done so began to disestablish their multiple
state establishments of religion: South Carolina in 1790, Georgia in 1798, Maryland in 1810, Connecticut in 1818, New Hampshire in 1819, and Massachusetts in 1833. And the newer states, as they were admitted to the Union, quite regularly followed the lead of the First Amendment, as Madison intended they should. Madison and his supporters did not intend for government to disdain religion or religious values; they intended that republican government at both federal and state levels guarantee full religious freedom and equal rights of conscience to all persons. But it took 150 years before Madison's views were applied to the states through the Fourteenth Amendment, which is what the Supreme Court in Everson did.
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