Freedom of Religion (In U.S. Constitution)
FREEDOM OF RELIGION (IN U.S. CONSTITUTION)
The meaning of the religious clauses of the First Amendment to the Federal Constitution has been one of the most challenging aspects of constitutional law, and has significant social implications. These clauses read, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
1. GENESIS OF THE RELIGION CLAUSES
The principles contained in this declaration of religious liberty had a long and tortuous path to follow before they finally became a part of the U.S. Constitution. At the time of the Revolutionary War the majority of the colonies had established churches, but when the framers of the Constitution convened in Philadelphia, the religious status of the several states varied from full and perfect freedom to absolute establishment of Protestantism [see church and state in the u.s. (legal history)]
The diversity of religious systems was matched by the diversity of religious backgrounds of the delegates to the Constitutional Convention. Almost all religious denominations were represented, including several Baptists and Catholics. The Catholic representatives were Daniel Carroll and Thomas Fitzsimmons.
Agitation for Religious Guarantees. When the delegates to the Constitutional Convention met in 1787 to draft a federal constitution there was already a strong sentiment in favor of religious liberty. No attempt was made in the convention fully to codify this attitude. The principal preoccupation with religious liberty in the convention dealt with test oaths. Charles Pinckney of South Carolina submitted the following provision, "But no religious test shall ever be required as a qualification to any office or public trust under the United States." After brief opposition the proposal was adopted. With slight modifications it was finally approved in the form as it now appears in Article 6 of the Constitution.
In the state conventions called to ratify the proposed Constitution of the United States, opposition to this limited guarantee of religious liberty was expressed. The majority of the delegates approved of the action but expressed the opinion that further guarantees were necessary. Several states recommended specific amendments. New Hampshire proposed the following amendment:
Congress shall make no laws touching religion, or to infringe the rights of conscience.
Virginia requested an amendment providing:
That religion, or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal natural and unalienable right to the free exercise of religion according to the dictates of their conscience, and that no particular sect or society ought to be favored or established, by law, in preference to others.
The states of North Carolina, New York, and Rhode Island, while not proposing a specific amendment, issued declarations of principles in conjunction with ratification. The principles of religious liberty, expressed in these declarations, followed the language of the Virginia proposal. Strong statements of the need for an amendment prohibiting religious liberty were expressed in other states, notably Pennsylvania and Maryland, but they were not adopted as formal recommendations.
In some of the states it was not deemed necessary to request an amendment, for it was asserted that the federal government was not given any power over religion. Oliver Ellsworth of Connecticut, writing under the name of "Landholder," expressed this idea in the Dec. 10, 1787 issue of the Connecticut Courant in answer to a charge that the Constitution did not contain a bill of rights. He said, "Nor is liberty of conscience, or of matrimony or burial of the dead [referred to]; it is enough that Congress have no power to prohibit either, and can have no temptation."
Others felt that a bill of rights was absolutely necessary; the leading exponent of this position was Thomas Jefferson. In a letter to James Madison on Dec. 20, 1787, he indicated that he was quite concerned because the Constitution did not carry a bill of rights.
I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land, and not by the laws of nations.
But Madison did not feel quite as strongly as Jefferson. He was well aware of a rising demand for another convention to revise the Constitution, but preferred to have amendments adopted by the Congress.
The debate in the state conventions called to ratify the Constitution clearly indicated that the primary concern was to eliminate legal preference for one or more religions. Many letters, written frequently by men who were outstanding in their communities, demonstrated a fear that possibly the federal government might establish a national religion. They evidenced no attitude of hostility toward religion but rather the desire to prevent by law the extension of legal preference for one sect over another.
Joseph Story, one of the leading contemporary authorities on the Constitution and later associate justice of the Supreme Court, made the following observation:
Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as it was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of State policy to hold all in utter indifference, would have created universal disapprobation if not universal indignation …. The real objectof the amendment was … to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.
The following article appeared in the Federal Gazette, titled, "Remarks on the First Part of Amendments to the Federal Constitution Moved on the Eighth Instant in the House of Representatives"
The next article [First Amendment] established religious liberty, and all of those political rights, which by various tricks of state have been wounded through its means, on the firmest ground. The tender, the almost sacred rights of conscience, says this inestimable article, shall by no means, on no account be abridged or interfered with. No self righteous or powerful church shall set up its impious domination over all of the rest. Every pious man may pay the Divine Author of his existence the tribute of thanksgiving and, adoration in the manner of his forefathers.
This article was extraordinarily significant. It was reprinted in the Massachusetts Centinal on July 4, 1789, and appeared in many other leading newspapers throughout the states. It is frequently credited with being instrumental in helping to create a public understanding of the issues involved in the move for an amendment on religious liberty.
Debate on the Proposed Amendment. While these official and unofficial utterances are significant, the important statements were those made at the time that the amendment was under active consideration. This phase of the legislative process commenced on June 8, 1789, when James Madison rose in the House and said:
The amendments which have occurred to me, proper to be recommended by Congress to the State Legislatures, are these: … Fourthly, That in Article 1st, Section 9, between clauses 3 and 4 to be inserted these clauses, "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 equal right of conscience in any manner or on any pretext be infringed."
This was an amendment to a section of the original Constitution that was a limitation upon Congress alone. It set forth that portion of the Bill of Rights which Madison deemed to be proper to restrict the power of the Federal government in matters of religion. On June 8, 1789, this draft was referred to the committee of the whole.
On July 21 the committee of the whole was discharged and a select committee was appointed to receive and consider Madison's propositions. This committee was composed of the following state representatives: John Vining, of Delaware; James Madison, of Virginia; Abraham Baldwin, of Georgia; Roger Sherman, of Connecticut; Aedamus Burke, of South Carolina; Nicholas Gilman, of New Hampshire; George Clymer, of Pennsylvania; Egbert Benson, of New York; Benjamin Goodhue, of Massachusetts; Elias Boudinot, of New Jersey; and George Gale, of Maryland. Vining was named chairman of the Committee.
In the House. On July 28 the select committee reported out the fourth proposal of Madison in the following manner:
Article I, Section 9 between paragraphs 2 and 3 insert: "no religion shall be established by law, nor shall the equal rights of conscience be infringed."
It is to be observed that the term "national" was dropped after having been incorporated specifically in Madison's initial recommendation. The report of the committee was tabled.
On August 7 the Congress reenacted the Northwest Ordinance, which in part provided, "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged."
On August 13 the House of Representatives resolved itself into a committee of the whole to consider the report of the select committee. Again, on August 15, the House resolved itself into a committee of the whole with Representative Boudinot of New Jersey in the chair. Fortunately, the Annals of Congress are unusually complete in the significant debate that ensued. The Annals preserve the comments of the more influential members of the House. So important is the legislative history of the amendment that it is necessary to set forth in detail the entire debate:
Mr. Sylvester (New York) had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether.
Mr. Vining (Delaware) suggested the propriety of transposing the two members of the sentence.
Mr. Gerry (Massachusetts) said it would read better if it was, that no religious doctrine shall be established by law.
Mr. Sherman (Connecticut) thought the amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out.
Mr. Carroll (Maryland)—As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of govern-mental hand; and as many sects have concurred in opinion that they are not well secured under the present Constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.
Mr. Madison (Virginia) said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
Mr. Huntington (Connecticut) said that he feared, with the gentleman first up on this subject; that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it. The ministers of their congregations to the Eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by by-laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers of building of places of worship might be construed into a religious establishment.
By charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.
Mr. Madison thought, if the word, "National," was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent.
Mr. Livermore (New Hampshire) was not satisfied with that amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it were altered, and made to read in this manner, that "Congress shall make no laws touching religion, or infringing the rights of conscience."
Mr. Gerry did not like the term "national," proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the conventions at the time they were considering the present Constitution. It had been insisted upon by those who were called antifederalists, that this form of Government consolidated the Union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time, complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a national one; the federalists were for ratifying the Constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.
Mr. Madison withdrew his motion, but observed that the words "no national religion shall be established by law," did not imply that the Government was a national one; the question was then taken on Mr. Livermore's motion, and passed in the affirmative, thirty-one for, and twenty against it.
The House began consideration of the report of the Committee of the Whole on Aug. 19, 1789. The next day, Fisher Ames moved that the proposed religious amendment be altered so as to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." This motion was accepted by the House.
It is reported in the Journal of the House for Friday, August 21 that the third article was again debated and finally agreed to in this slightly different form: "Third. Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." This action of August 21 is not noted in the Annals of Congress. The next day congressmen Benson, Sherman, and Sedgwick were appointed to arrange the articles for delivery to the Senate, and on the 24th, the clerk of the House was ordered to present the Senate with a "fair engrossed copy of the said proposed articles of amendment with a request for concurrence."
In the Senate. On Tuesday, Aug. 25, 1789, there was read in the Senate the House draft of the articles on religion. >From one of the senators present that day, we learn that the Senate discussed the amendments to the Constitution sent from the House of Representatives. They were not well received by Ralph Izard (South Carolina), John Langdon (New Hampshire) and Robert Morris (Pennsylvania). Izard moved that they should be postponed until the next session. Langdon seconded, and Morris got up and spoke against the amendment. The motion was defeated and Monday was assigned for consideration of the amendments.
It was moved in the Senate on September 3 to amend the House draft of article three by striking out the words "Religion or prohibiting the free exercise thereof," and inserting "One Religious Sect or Society in preference to others." This motion was defeated. A motion for reconsideration was then passed, and a motion to strike the House-proposed third article was defeated. In lieu of the suggested third article, it was moved to adopt the following: "Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society." This too failed. The debate continued. Another motion was defeated that would have amended the House's third article to read: "Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." Oddly, the Senate then moved to accept the third article just as it had been received from the House, namely, "Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." But this also failed to pass. Finally, it was passed in the affirmative that they adopt the wording of the House, but with the deletion of the words "nor shall the rights of conscience be infringed."
On Sept. 9, 1789, the necessary two-thirds of the Senate concurred in adopting a draft proposed by the Senator from Connecticut, Oliver Ellsworth. It reads as follows:
To erase from the third article the word "Religion " and insert "articles of faith or a mode of worship "—And to erase from the same article the words "Thereof, nor shall the rights of conscience be infringed, " and insert—"of Religion; or abridging the freedom of speech, or of the press. "
The proposed amendment that would have prohibited the states from infringing the rights of conscience was also erased in the Ellsworth draft.
On September 10 the House received word of the Senate action and on the 19th the House reconsidered their proposed amendments, as these had been changed by the Senate.
On Sept. 21, 1789, the House informed the Senate it could not agree to the wording approved by the Senate and that it desired a conference. Accordingly, a committee of conference was named, composed of Senators Oliver Ellsworth, of Connecticut; Charles Carroll, of Maryland; and William Paterson, of New Jersey; together with Representatives James Madison, of Virginia; Roger Sherman, of Connecticut; and John Vining, of Delaware. By the 24th of the month the House had agreed to the committee's present wording of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
In the process of arriving at this agreement the conferees deleted the proposal that would have applied directly to state action. There is no satisfactory evidence as to who is the author of this wording. The following day, September 25, the Senate concurred in the resolution of the House requesting the President to submit the amendments to states.
Ratification. A determination of the meaning of the First Amendment must of necessity consider the attitude of the conventions called for the purpose of the ratification of the new amendments to the Constitution, and also the expressed attitude of the people during the time that ratification was being debated. The three most important steps in ascertaining the meaning of the amendments are:(1) the recommendations made by the states; (2) the proposals in the first Congress and the debate thereon; (3) the developments in the process of ratification. Unfortunately, historical records are incomplete with respect to the attitude of the ratifying conventions. It is known that some conventions did not give any specific attention to the amendment on religion but adopted the Bill of Rights as submitted by Congress.
The one ray of light that we have from historical records shone from the Virginia Assembly. On Sept. 28, 1789, three days after the concurrence by the Senate and the House on the 12 amendments, Senators R. H. Lee and William Grayson, of Virginia, wrote to the governor of the state submitting the amendments and saying:
It is with grief that we now send forward proposals inadequate to the purpose of real substantial amendments, and so far short of the wishes of our country [state].
On Dec. 12, 1789, the majority of the Virginia Senate postponed ratification of the amendments until the next session. Among the amendments that did not meet with their approval was the First Amendment. The Journal of the Virginia Senate for Dec. 12, 1789, reads as follows:
The third [first] amendment recommended by Congress does not prohibit the rights of conscience from being violated or infringed; and although it goes to restrain Congress from passing laws establishing any national religion, they might, notwithstanding, levy taxes to any amount for the support of religion or its preachers; and any particular denomination of Christians might be so favored and supported by the general government, as to give it a decided advantage over the others, and in the process of time render it powerful and dangerous as if it was established as the national religion of the country.
This amendment then, when considered as it relates to any of the rights it is pretended to secure, will be found totally inadequate, and betrays an unreasonable, unjustifiable, but a studied departure from the amendment proposed by Virginia, and other states for the protection of these rights. We conceive that this amendment is dangerous and fallacious, as it tends to lull the apprehensions of the people on these important points; without affording them security, and mischievous because by setting bounds to Congress it will be considered as the only restriction on their power over these rights, and thus certain powers in the Government which it has been denied to possess, will be recognized without being properly guarded against abuse.
This document is particularly significant because it demonstrates that the Virginians who were probably the leaders in the whole movement for disestablishment felt that the proposed amendment did not live up to th spirit or the letter of the recommendation made by the state of Virginia when ratifying the Constitution. This is additionally significant when consideration is given to the fact that other states had adhered to the recommendation of Virginia, i.e., North Carolina, Rhode Island, and New York.
Several of the senators who filed this report had a continuous relationship with the development of religious liberty in Virginia. For example, Anderson and Pride were on the committee which originally reported the Virginia bill for establishing religious freedom. Though Virginia finally ratified the First Amendment, the document in 1789 containing the Virginia Senate's interpretation of the First Amendment was circulated widely throughout the colonies. For example, it appeared in the Daily Advertiser, New York, N.Y., for Jan. 26, 1790. It also was reprinted in the Virginia Independent Chronicle, Richmond, for Dec. 12, 1789. We can only speculate as to whether the other states when ratifying the amendment placed the same interpretation upon it as the Virginia Senate. However, it is a matter of historical record that several of the states were affected by the attitude of Virginia with respect to religious freedom. Presumably, they gave mature consideration to the interpretation placed upon the religious amendment by the Senate of the State of Virginia.
With respect to the other states the record is meager. The records of the debate in the Delaware General Assembly do not divulge what was discussed on the floor of either the House of Delegates or the Council. Final ratification occurred on Jan. 27, 1790.
The state of Pennsylvania formally ratified the present ten amendments on March 10, 1790. Again there is no historical record of the debate on the amendments. Of more than a little interest are the conclusions reached in the state constitutional convention, which was held in 1790, during the same time that the Pennsylvania Assembly was debating the proposed amendments. The Pennsylvania constitution of 1776 stated that:
All men have an unalienable right to worship Almighty God according to the dictates of their own consciences.
The new Constitution repeated this declaration but significantly added the following:
That no preference shall ever be given by law, to any religious establishment or mode of worship.
Undoubtedly, there is a relationship between the religious amendment recommended by Congress and the language adopted by the delegates to the state constitutional convention. This is particularly true when one considers the emphasis on the term "preference" by the First Congress during the formulation of the religious amendment.
In the state of New York the Senate ratified the amendments on Feb. 24, 1790, without significant debate.
New Hampshire ratified the Federal Bill of Rights on Jan. 25, 1790. The absence of debate or newspaper comment indicates that the New Hampshire legislators did not think that there was any substantial conflict between the proposed amendments on religion and the recommendation that the state had made when it ratified the Constitution.
Similarly, the records fail to disclose any debate preceding ratification by Maryland.
The state of Connecticut did not ratify the Federal Bill of Rights but extensively considered the proposed amendments. The convention was still debating over the form of the amendments when Virginia ratified the Bill of Rights on Dec. 17, 1791, and since three-fourths of the states had already ratified the Bill of Rights, it automatically became law. Similarly, Massachusetts failed to ratify the Bill of Rights. It does not appear from historical records that there was any discussion of religion in the legislative tribunal called for the purpose of ratifying the recommended amendment nor is there any significant discussion in the newspapers of the time.
Georgia also failed to ratify the amendments. No evidence is available concerning the reasons for the failure of Georgia to ratify, and there is no historical documentation of the attitude of Georgia with respect to the religious amendment. However, it is known that in the constitution of 1789 Georgia had declared that all persons should have "free exercise" of their religion.
The amendments were submitted to the South Carolina convention on Jan. 4, 1790, and approved on Jan. 19, 1790. It will be recalled that South Carolina was one of the states that had specifically recommended an amendment with respect to religion. The lack of debate indicated that it felt that the essence of its proposal was incorporated in the religious amendment proposed by the Federal government.
Rhode Island ratified the Bill of Rights of the Constitution at the same time. There is some evidence in the official journal of Rhode Island indicating that there was a debate on the religious issue. The record, however, is so sketchy and contains so many deletions and interruptions that it is difficult to determine the attitude of the Rhode Island convention.
Public Opinion. An examination of the newspapers published during the ratification period discloses few comments on the First Amendment. Undoubtedly, this is due to several factors. In the first place, the amendment did not arouse extended debate in the conventions called to ratify the amendments to the Constitution. Secondly, there had been rather extensive comment on the amendment during the time that it was being debated in the First Congress. Consequently, there was a fairly good understanding of the religious amendment and a conviction that it was substantially in harmony with the attitude of the majority of the states with respect to the relationship between Church and State. It reflected the mainstream of thinking respecting religious liberty. Though there was no significant newspaper comment, the Founding Fathers, who as legislators formulated the First Amendment, expressed their views of the proper relationship between Church and State on frequent occasions. Their statements give us an invaluable insight into the thinking of the men who were primarily responsible for framing the First Amendment.
The Carrolls. It is interesting to examine the opinions of the Carrolls. This outstanding Catholic family was in close contact with the constitutional development of religious liberty in the U.S. Charles Carroll, of Carrolltown, was a senator from Maryland in the First Congress. More important, he was chairman of the Senate Conferees in the committee of conference that was responsible for the final structure of the First Amendment. Fortunately, his views on the Church-State relationship have been preserved in several documents. He frequently expressed his opinion that any preference and discrimination because of religion was constitutionally objectionable. He had approved the ban upon religious tests in Article 6 of the U.S. Constitution, and he led the forces in Maryland in favor of ratifying this amendment. He felt that the use of government funds to aid religion so long as there was no preference given to one sect was constitutional. In the Maryland State Legislature he sponsored various laws which favored impartial state support of religion. None of his writings contain evidence that he believed that the Federal government should have been denied the opportunity to engage in similar expenditures.
Daniel Carroll, cousin of Charles Carroll, also served in the First Congress of the United States and took an active part in the debate on the religious amendments. At various times as a state legislator he had demonstrated his willingness to use governmental funds to aid religion. He had been a staunch advocate of the passage of an action to provide relief for widows and children of Protestant clergy. Moreover, as president of the Maryland Senate he introduced a bill "to incorporate certain persons in every Christian church or congregation throughout this state."
Though not a legislator, a third member of the Carroll family, namely, Bp. John Carroll, was particularly active in the field of religious liberty. Historical records contain many letters and debates of Bishop Carroll in which he consistently expressed the broad principle of religious liberty embraced in the First Amendment as it was originally understood. On Jan. 30, 1789, Bishop Carroll answered a series of letters appearing in the Columbia Magazine that attacked Catholic citizens. He said:
After having contributed in proportion to their numbers, equally at least with every other denomination to the establishment of independence, and run every risk in common with them, it is not only contradictory to the avowed principles of equality in religious rights but a flagrant act of injustice to deprive them of those advantages to the acquirement of which they so much contributed.
Edward Humphrey, in Nationalism and Religion in America (Boston 1924), said that the Carrolls were largely instrumental in reading into the Federal Constitution a principle of religious freedom drawn from the framers of the Declaration of Independence that all men are created equal and are endowed by the Creator with certain unalienable rights.
This equality of religion was a dominant note in the thinking of the Carrolls and certainly it was constantly expressed by them, together with others in the First Congress and in the ratifying conventions. It is the key to an understanding of the meaning of the First Amendment, as it was understood by the Founding Fathers and prominent men of that day.
Bibliography: f. ames, Works (Boston 1809). m. p. andrews, History of Maryland (Garden City, N.Y. 1929). s. h. cobb, The Rise of Religious Liberty in America (New York 1902). j. elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution … Together with the Journal of the Federal Convention, 5 v. (Washington 1836–59). Records of the Federal Convention of 1787, ed. m. farrand, 4 v. (rev. ed. New Haven 1911–37). p. l. ford, ed., Essays on the Constitution of the United States, Published during Its Discussion by the People 1787–1788 (Brooklyn 1892). m. v. geiger, Daniel Carroll: A Framer of the Constitution (Washington 1943). p. k. guilday, The Life and Times of John Carroll, Archbishop of Baltimore, 1735–1815, 2 v. (New York 1927). w. maclay, Journal, ed. e. s. maclay (New York 1890). j. c. meyer, Church and State in Massachusetts from 1740 to 1833 (Cleveland 1930). a. p. stokes, Church and State in the United States, 3 v. (New York 1950). f.n. thorpe, Constitutional History of the United States, 3 v. (Chicago 1901); ed., Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies Now or Heretofore Forming the United States of America, 7 v. (Washington 1909). a. w. werline, Problems of Church and State in Maryland During the Seventeenth and Eighteenth Centuries (South Lancaster, Mass. 1948). Records of Federal Conventions and Legislative Sessions. U.S. Constitution, Constitution of the United States of America … Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952, ed. e. s. corwin (82nd Cong., 2d sess. Senate Document 170; Washington 1953). U.S. Congress, The Debates and Proceedings in the Congress gress of the United States … >From March 3, 1789 to May 27, 1824, inclusive, half-title: Annals of the Congress of the United States, 42 v. (Washington 1834–56) v.1–2. j. b. scott, James Madison's Notes of Debates in the Federal Convention of 1787 (New York 1918). U.S. Congress, Senate, Journal of the First Session of the Senate of the United States of America (New York 1789). State Journals and Records. Journal of the House of Representatives (New York 1777–95); Journal of the Senate, 1790, South Carolina Archives, Columbia; Journal of the Virginia Senate, December 12, 1789 (Richmond 1928); Meetings of the Council of Delaware, 1777–1792 (Dover 1928); Rhode Island Journal.
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IMPACT ON THE NEW NATION.
Mr. Justice Felix Frankfurter, speaking of the religion clauses of the First Amendment when giving his concurring opinion in McCollum v. Board of Education, 333 U.S. 203 (1948), said, "The mere formulation of a relevant constitutional principle is the beginning of the solution of a problem, not its answer" (333 U.S. at 212). This observation aptly summarizes developments between the date of the congressional adoption of the First Amendment (1789) and 1840. It was a period of erratic but steady growth of the principle of religious liberty.
Federal Action. An important factor in assessing the impact of the religion clauses of the First Amendment is the limitation of the amendment to action of the Federal government. The House and Senate conferees stressed this limitation in 1789 when they refused to adopt the proposal of the House that would have made it unconstitutional for a state to violate the equal rights of conscience. The limitation of the Bill of Rights to Federal action was confirmed by the Supreme Court of the U.S. in the case of Barron v. Baltimore, 7 Peters 243, decided in 1833.
Treaties. Despite this limitation the federal government was able to promote religious liberty through treaties and various types of federal legislation. Article V of the treaty with Spain (1819) ceding Florida to the U.S. provided:
The inhabitants of the ceded territories shall be secure in the free exercise of their religion without restriction. [8 U.S. Stat. at Large 252.] The growth of this principle is reflected in the legislation providing for a territorial government of Florida, 1822. Section 5 of the enabling congressional legislation provided that:
No law shall be valid which … shall lay any person under restraint, burthen, or disability, on account of his religious opinions, professions or worship; in all of which he shall be free to maintain his own, and not burdened with those of another [3 U.S. Stat. at Large 654.]
This attitude had been anticipated in the treaty ceding Louisiana to the U.S. (1803). Article II of this treaty had stated that:
The inhabitants shall be maintained and protected in the free enjoyment of their liberty, prosperity and the religion which they profess. [8 U.S. Stat. at Large 200.]
The next year Congress had passed a law erecting Louisiana into territories. This act had spelled out the precepts of religious liberty in detail, stating in summary that no law would be valid that imposed a disability on account of religious opinions or worship. In 1805 Congress had passed an act for the government of Louisiana, section 30 of which said:
That the Constitution shall contain the fundamental principles of religious liberty. [2 U.S. Stat. at Large 331.]
These treaty and enabling law provisions are particularly significant since a large number of the people in these areas were of Catholic persuasion. Moreover, the constitutions of the several states carved out of the Louisiana Territory exemplified this mandate of religious liberty.
The same Congress that adopted the First Amendment enacted the Northwest Ordinance of 1787, Article I of which provided that:
No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the North West Territory. [1 U.S. Stat. at Large50.]
This principle of freedom of religion radiated to a large section of the country through organic laws that left no doubt about the commitment of the federal government to the basic principles of religious liberty. Other legislation was later to delineate the principles enunciated, but it is clear that these treaties and early enabling laws were the primary contributions to the development of the concept of religious liberty in the area between the Atlantic coast and the Mississippi River. They emphasized the concept of individual religious freedom and the "free exercise" concept of the First Amendment. They were silent on the principle of "no establishment." In this respect they were similar to the House provision rejected by the conferees considering the Bill of Rights.
Thanksgiving and Chaplains. The concept of religious freedom did not, during this period, preclude the official recognition of God. Thus, on the day that the report of the conference committee was accepted (Sept. 24, 1789), the House adopted a resolution:
That a joint committee of both Houses be directed to wait upon the President of the United States, to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts, the many signal favors of the Almighty God. [I Annals of Congress 913.] During the rest of this period all of the presidents, with the exception of Jefferson, proclaimed national days of prayer and religious observance.
In 1790 the House adopted a resolution, "that chaplains of different denominations be appointed to the Congress" (Annals, I, p. 932). The next year congressional legislation provided for chaplains in the Military Establishment Law (1 US Stat. at Large 223). This legislation was extended in 1792. Chaplains were provided for the Navy in 1794 (1 U.S. Stat. at Large 350). In 1800 the Congress directed that:
The Commanders of all ships and vessels in the Navy having chaplains on board, shall take care that divine services be performed in a solemn orderly and reverent manner twice a day, and a sermon preached on Sunday, unless bad weather or some extraordinary accident prevent it; and that they cause all, or as many of the ship's company as can be spared from duty, to attend every performance of the worship of Almighty God. [2 U.S. Stat. at Large 45.] At the turn of the century the pattern of legislation, both federal and state, continued to disclose a willingness and desire to recognize officially God and the beneficial effect of religion. There was no significant protest outside of Jefferson's refusal to proclaim days of prayer.
Incorporation of Churches. Madison did not object to the appointment of chaplains in 1789 though later, after he had retired from active political life, he wrote a treatise arguing that the practice was not consistent with religious freedom—a thesis that has not been accepted. Madison took a strict view also on the incorporation of religious bodies. In 1811 he vetoed a bill to incorporate the Protestant Episcopal Church of Alexandria,
Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions and violates in particular the Article of the Constitution of the United States which declares that, "Congress shall make no law respecting a religious establishment."
The Annals of Congress do not record the debate on the veto message, but the issue of the National Intelligencer for Feb. 23, 1811, records a portion of the debate; Mr. Timothy Pitkin from Connecticut stated that
He had no idea that the Constitution precluded Congress from passing laws to incorporate religious bodies for the purpose of enabling them to hold property. He had always held the Constitution to intend to prevent the establishment of a National Church, such as the Church of England, a refusal to subscribe to the tenents of which was to exclude a citizen from office. The veto was sustained by a vote of 90 to 27, but this vote should be interpreted in the light of the fact that Mr. Benjamin Pickman, Jr., of Massachusetts, said:
It appeared to him that the bill was not an important one, a refusal to pass which would be productive of any serious injury; and yet that a full discussion of the principles that it involved would occupy the whole of the remainder of the session.
In line with Rep. Pitkin's views was an editorial entitled "Democratic Qualms," appearing in the Baltimore Federal Republican and Commercial Gazette for Feb. 26, 1811. The editorial stated:
What was the meaning of the Constitution in providing against a religious establishment? Does any man but Mr. Madison imagine it was to prevent the District of Columbia from engaging legal church regulations, and from exercising corporate rights in their congregations? Does The Legislature of Maryland believe it is creating a religious establishment when it is occupied in granting charters to the churches of the different sects of Christians as often as they apply? Where all are equally protected and accommodated, where each sect and congregation has its own establishment, modified according to its wishes and sanctioned in that modification by law, the best security exists against "a religious establishment," that is to say, one pre-eminent establishment which is preferred and set up over the rest against which alone the constitutional safeguard was created.
This was the first legislation to fall as a result of the application of the First Amendment. The fact is that it reflected a very special condition that existed in Virginia, namely, the associating of establishment with incorporation.
Madison also vetoed a bill that provided for a grant of land to a Baptist church in Salem, Miss. This position did not display the general attitude of the Congress or that of the executive office during this period.
In 1803 Jefferson as President concluded a treaty with the Kaskaskia people providing for the payment of $100 annually to a Catholic priest to perform religious ceremonies for the Native Amricans and to educate them (7 U.S. Stat. at Large 74). Starting in 1819 Congress commenced annual appropriations of money for mission boards to Christianize and educate native peoples. This became a standard and well-accepted policy during this period.
Many church-related schools also received congressional grants of land and money. In 1833, for example, Congress granted land to Georgetown College (6 U.S. Stat. at Large 538). These facts are recited not in an endeavor to interpret the First Amendment but rather to indicate the nature and direction of its development.
Scant Judicial Review. There is no body of judicial precedent interpreting the amendment during this period. The only case reaching the Supreme Court of the U.S. was Terret v. Taylor, 9 Cranch 43 (1815), which involved the validity of laws turning over confiscated glebe land in Virginia to public officials. In declaring the law unconstitutional, Justice Joseph Story, speaking for the Supreme Court, said:
Consistent with the constitution of Virginia, the legislature could not create or continue a religious establishment which would have exclusive rights and prerogatives, or compel the citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they could not conscientiously believe. But the free exercise of religion cannot be justly deemed to be restrained, by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. [9 Cranch at 49.]
This language came close to representing the contemporary attitude with respect to Church and State.
State Constitutions. It is important to examine the constitutional reaction of the states during this period to determine whether their organic law reflected the impact of the First Amendment. This would only demonstrate the indirect action of the amendment for, as heretofore observed, it was a limitation on the federal government and not the states. Yet the amendment was, to a certain extent, a codification of the religious sentiments of the day, and as such, it could be expected to have significant influence.
Uniform Enactments. Twenty-one states adopted constitutions during this time. Seven contained the following provision:
That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can of right be compelled to attend, erect or support any place of worship or maintain any ministry, against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law, to any religious establishments or modes of worship. This language was first incorporated in the Pennsylvania Constitution of 1790, which was adopted in convention at Philadelphia at the same time and place where delegates from Pennsylvania ratified the First Amendment. The relationship or impact of the First Amendment on the formulation of this language is still open to speculation, but it will be observed that it contains the guarantee of free exercise and a bar against legal preference for a religious establishment. Certainly, the proximity of time, place, and common interest gave the respective delegates an opportunity for an exchange of opinion. States adopting this same language during the period under consideration were Kentucky, 1792; Tennessee, 1796; Ohio, 1802; Indiana, 1816; Illinois, 1818; and Arkansas, 1836. Language substantially similar may be found in the constitutions of Vermont, 1791; Delaware, 1792; New Hampshire, 1792; Georgia, 1798; Missouri, 1820; Michigan, 1835; and Florida 1838.
Private Schools. No state constitution adopted during this period provided that money could not be used in aid of a sectarian school. The constitution of Michigan, however, provided that:
No money shall be drawn from the treasury for the benefit of religious societies, or theological or religious seminaries.
No other state constitutional provisions reveal this concept. On the other hand, the Ohio constitution of 1802 provided:
The laws shall be passed by the legislature which shall secure to each and every denomination of religious society in each surveyed township, which now is or which may hereafter be formed in the State, an equal participation according to their number of adherents, of the profits arising from the land granted by Congress for the support of religion, agreeable to the ordinance or act of Congress making the appropriation.
The Missouri Enabling Act of 1812 had similar language. Despite this diversity, the constitutions were remarkably similar. All contained a free exercise provision spelled out in detail, and most of them had a "no establishment" clause detailed in terms of no preference. This obviously was the accepted concept of religious liberty during this period. Modified establishments did persist as late as 1833 in Massachusetts and several of the other New England states, but by 1840 very little remained except vestigial aspects of establishment that were retained more by tradition than by usage. Several states retained test oaths, notably, Maryland, North Carolina, Tennessee, Mississippi, Arkansas, and Pennsylvania.
Of course, this does not mean that all the constitutional aspects of religious liberty had been translated into action. It was during the latter part of this period that Nativism took root. In 1834 the Ursuline Convent in Charlestown, Mass., was burned to the ground. More trouble was to come and more open flouting of the constitutional guarantees of religious liberty. The gap between the law and actual practice was a wide one, but this was due to a variety of factors, none of which specifically involved the First Amendment.
Many social and philosophical factors such as the growth of the public schools, the influx of immigrants, the anticlerical philosophy of the French Revolution, and the fear of Rome would eventually result in movements that would reshape state constitutions and place a new and different gloss of interpretation on the First Amendment. However, the basic concept of religious liberty is most accurately shown in the treaties, congressional enactments, and state constitutions that were adopted before 1840. This was the period when the momentum, developed during the constitutional period, generated laws accurately reflecting the fundamental meaning and purpose of the First Amendment.
Bibliography: c. a. beard, The Republic (New York 1943). e. channing, A History of the United States, 6 v. (New York 1905–25). s. h. cobb, The Rise of Religious Liberty in America (New York 1902). r. j. gabel, Public Funds for Church and Private Schools (Washington 1937). e. b. greene, Religion and the State (New York 1941). p. schaff, Church and State in the United States (New York 1888). f. n. thorpe, Federal and State Constitutions, Colonial Charters and Other Organic Laws of the State, Territories, and Colonies Now or Heretofore Forming the United States of America, 7 v. (Washington 1909). w. w. winthrop, Military Law and Precedents (reprint Washington 1920). j. elliot, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution … Together with the Journal of the Federal Convention, 5 v. (Washington 1836–59). U.S. Congress, The Debates and Proceedings in the Congress of the United States … From March 3, 1789 to May 27, 1824, inclusive (Annals of the Congress of the United States) 42 v. (Washington 1834–1856) 1:914, 932, 1043. U.S. President, A Compilation of the Messages and Papers of the Presidents, comp. j. d. richardson, 20 v. (New York 1917).
[g. e. reed]