1st Amendment Separation of Church and State: Freedom of Religion and the Intent of our Founding Fathers

1ST AMENDMENT SEPARATION OF CHURCH AND STATE: THE INTENT OF OUR FOUNDING FATHERS[*]

I. Introduction

Today we are challenged with questions of the intent of the framers when drafting the Constitution and the Bill of Rights. Historians and courts have expressed varying ideas and views on this matter. As the years pass on, the intent of those long gone days passes along with it. The world of yesteryear has vanished into the annals of time. What was the political, professional and personal atmosphere like at the time these historically significant documents were conceived? What were their authors really like? The Revolutionary War was over. Memories of deceased friends and family still lingered in their minds. However, the ropes of a tyrannical monarchy had been severed. To ensure that personal freedoms and liberties of its citizens would be guaranteed, ten Amendments to the newly created U.S. Constitution were ratified. The first ten, called the Bill of Rights, sets forth rights of the people against an oppressive government.

The first of these Amendments provide its citizens particular rights and freedoms that are fundamental to any free society. These rights were placed into the very first Amendment for a reason - it provided the document with a foundation behind allother rights. They were in some ways a retribution against the actions exercised by old King George III of England that lit the flames for the revolution. These activities included the suppression of non-state religions, the suppression of speech in any form, the obstruction of the assembly of individuals, and the lack of representation of its citizens in the legislature. The First Amendment addresses these concerns by stating:

The First Amendment sets forth all of those rights which a free county must possess to succeed and prosper. The first of these rights concerns religion. Is this just a coincidence, or was it intentionally put first for a reason? This section on religion is as narrow as it is broad, and has been under much scrutiny from our Supreme Court justices over the years. Somewhere during the last two-hundred plus years the original meaning and intent have become lost. Its original meaning has been misinterpreted in decision after decision according to some of our modern Supreme Court Justices, while others feel that they have made interpretations based on its original intent.

It is the focus of this paper to search out the original intent of the framers when they drafted the clauses for the Freedom of Religion. To do this, we will look at the times in which the writing took place, as well as the lives of the individuals who were fundamental to its inception. To better understand the time period, it is important to first review a brief history lesson of the evolution of religion in conjunction with the birth of this nation.

Webster's gives us six different definitions, but if a poll would be taken of every person that passes along on the street outside, many other definitions would be provided as well.

But where did this word come from? To seek out the origin of the word itself I turned to the Dictionary of Word Origins, which gives the history of the word "religion" as follows:

In the early dawn of humankind, humans were more intelligent and creative than their primate ancestors, but in order to survive, they needed to form bonds with each other. Communities of these primitive humans began to evolve. As these communities were forming, thier appreciation for each other, and the world around them began to grow. They began to turn their attention to the sprit of the person. Take into account their naive nature, and probably their fascination of mysticism, that upon the death of a clan/community member they performed some type of burial ceremony. The ceremony might have been to honor the departed, or to help them on their journey into the unknown. If this is correct, then the origins of religion itself may have begun between 400,000 and 300,000 B.C.[3] However, there is much greater evidence of ritualistic burials were that found in the Mousterian sites which dated between 70,000 and 50,000 B.C.[4]

The blending of religion and state is not a new concept and was created with the genesis of political systems long before the birth of the United States. This concept has been around for centuries. The rulers of ancient Greece and Rome were given their powers through the divine right of a supreme being. Divine right is the belief that the power to rule is bestowed upon the ruler by a supreme being. This gave the rulers the power to govern all the lands of their country, as well in many cases to also be the head of that religion. This ancient concept is still around in some forms today.[5] It was commonplace for religion to be intertwined with government. Christianity, as early as the fourth century had become the official religion of the Roman Empire being seen as mutually beneficial for both parties.[6] The church sanctifies the state, and the state proselytizes the church.

It became the common practice to include the church in all matters of state. By bringing g-d into the legislature and other functions of the state, they created a world that they believed to be moral and fair. Even during the Protestant movement throughout the medieval period, the new Christian sects took this idea of a combined church and state with them. This religious movement could be seen in Germany when it established the Lutheran church as the church of the state, in England and Scandinavia when they established the Anglican church, and other reformed churches were established in Zurich (Mennnonites) and Geneva.[7] However, the Anabaptists (a religious sect) believed, and were persecuted for their belief, that matters of the church should not be under the control of the state.[8]

The number of religions and religious sects continued to grow in Europe. The governments, and especially the established churches, were fearful that their power was in danger. In 1555 a treaty, named the Peace of Augsburg was signed to allow Germany, as a sovereignty, to establish one national church. This philosophy was expanded by the Peace of Westphlia in 1648.[9] The treaty set forth the principle of "cujus regio, ejus religio," or as translated "whose the rule, his or hers the religion."[10] This meant that if a sovereignty had control over a person or property, that sovereignty could dictate the religion over its subjects and territories. This was a principle which was spread throughout all of the countries of Europe. This was also the principle which spread into the New World.

The first European (although this is disputed) to set forth, and spread the European ideas, in the New World was Christopher Columbus in 1492. Later, in 1607, Captain John Smith and one hundred and four adventurous men and women established the first permanent colony at Jamestown, Virginia in the name of England.[11] These first colonists were members of the Anglican Church of England, and wanted to maintain this as the established church, as did North and South Carolina, Georgia, Maryland and New York. In 1610, the Jamestown colony enacted Dale's Law, named after the colony's first governor.[12] This law required all colonists to attend all Anglican worship, provisions against blasphemy, or even criticism of the church. Violations of these laws could eventually lead to death. This is contrary to the religiously tolerant county which Thomas Paine describes in Common Sense as:

The concept that the first colonist came here for religious freedom is a misnomer. Most of the first colonists were concerned with the pursuit of their own religious freedom, but were not interested in the freedoms of other religions, or other sects of that religion. This was demonstrated in the colony of Jamestown (see above), as well as in colonies throughout Massachusetts, Connecticut, and New Hampshire.[14] The Puritans were a religious group which broke off from the Anglican Church of England, and those that openly practiced their beliefs were stricken of their wealth, and their lives. The Puritans came to the new world to get away from the religious persecution. They came in 1620 to Plymouth, Massachusetts, and later in 1628 to Massachusetts Bay.[15] These new Puritan colonies set up governments based on their conceptions of the teachings in the Bible. This new colony was based on the Puritan religion, and it was their intention to keep it that way.[16] In a speech of one of the early leaders of the colony, Nathaniel Ward, he described unacceptable religions, and stated that the observers of other religions "shall have free Liberty to keep away from us, and such as will come to be gone as fast as they can, the sooner the better."[17] The Puritans had even executed four Quakers by hanging for what they considered blasphemy between 1659 and 1661, including the first woman martyr for religious liberty in the New World.[18] To the Puritans, religious freedom was their own freedom of practicing a religion without persecution, not the religious freedom of all people.

Not all of the colonies were formed with the concept of enforcing established religions. Two notable exceptions were Rhode Island and Pennsylvania. Roger Williams founded the Rhode Island colony in 1636 based on the idea that in order to keep religion pure, it must be separated from the constraints and regulations of the state.[19] This new colony was based on a principle of religious liberty and took in individuals who were trying to get away from religious persecution[20] at the other colonies.[21] The colony at Pennsylvania was founded in 1682 by a Quaker named William Penn.[22] The Quakers believed that religion should be free of state control in its thought or practice. Political office, however, was still only available to Christians.

Many states, in creating their own constitutions established state churches in which the individual state established one religion over another as the primary religion for that state. South Carolina's Constitution of 1776 stated that "the Roman Catholic religion (although before tolerated and freely exercised there) and an absolute government are established in that province . . ."[23] In its Constitution of 1778, South Carolina made its intentions even clearer by stating; "The Christian religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State."[24] Maryland's Constitution of 1776 read "the Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion. . . ."

By the late eighteenth century many of the colonies were becoming saturated with individuals from many Christian sects and to a lesser extent from other religions. The colony of Virginia lead the way in the protection of individual rights for its citizens. It passed a Declaration of Rights, from the original draft of George Mason. This was one of the most influential documents for not only the U.S. Bill of Rights, but for other European manifestos, including the French Declaration of the Rights of Man and Citizenship.[25] Thomas Jefferson, a citizen of Virginia, saw the need for religious freedom from the government. He proposed a bill to the Virginia State Legislature in 1779 which was entitled "Bill for Establishing Religious Freedom."[26] The Bill asks the Assembly to adopt laws which would prohibit the government from coercing an established religion upon its citizens, and that no citizen shall be punished for their religious opinions or beliefs. The bill, however was tabled that year. Patrick Henry introduced a taxation bill in 1784 which would give tax dollars specifically to teachers of the Christian religion only and to no others.[27] This bill was argued in the Assembly, and its main opponent was James Madison, whom argued vehemently for religious freedom, which can be observed in his essay entitled "Memorial and Remonstrate against Religious Assessments."[28]

The taxation bill was defeated in 1785, mainly due to the sway of public opinion by Madison.[29] Jefferson's bill, which had been tabled every year since 1779, had finally been passed in the Virginia State Assembly. Virginia became the forerunner on religious and individual rights, while Jefferson and Madison had the opportunity to express their ideas which they would later use in the conception of the Constitution and later the Bill of Rights.[30]

When George III became the King of England, he put many new restrictions and taxes upon his North American colonies. The statesmen, leaders, and thinkers of the colonies decided that they need to come together and form some sort of coalition against the oppression. The First Continental Congress was thus created and a Declaration of Colonial Rights was created on October 14, 1774. This document declared the rights which they had against the English monarchy. The writers were concerned with the rights of all of the English colonies and included as a provision "Also the act passed . . . for establishing the Roman Catholic Religion in the province of Quebec . . . and erecting a tyranny their, to the great danger, from so great a dissimilarity of Religion . . . of the neighboring British colonies . . . ."[31]

On May 25, 1787, fifty five delegates from the thirteen colonies convened upon Philadelphia for the Constitutional Convention.[32] After the Revolutionary War, the Articles of Confederation (which did not include any provisions for the freedom of religion[33]) were created in 1781 to bring cohesion to the thirteen colonies.[34] The Articles were very limited as to the powers of a central government, and this caused many problems among citizens of the individual states. This imperfection was clearly seen after Shays' Rebellion in 1786. Shay's Rebellion was an uprising of farmers in Massachusetts led by Daniel Shay which was caused by both the widespread depression of the time, as well as the non-centralized monetary system which was causing the farmers to go into debt.[35] This caused the delegates of the individual state's to create a more unified central government.

This delegates drafted the United States Constitution that created a more powerful centralized government. The drafters, however, were still skeptical about placing too much power in the hands of a central government. They created specific enumerated rights for this government, and reserved all other powers to the individual states and its citizens. This new government was divided into three branches, each of which could place checks and balances on the next. The framers believed that if no one entity retains too much power, the government will be able to survive. As Madison wrote; "[B]y so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."[36]

The Constitution, as it was written, only mentions religion once. In Article VI, paragraph 3, the Constituion states that state and federal office holders "shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as Qualification to any Office or public Trust under the United States."{emphasis added} This paragraph allows any individual to hold office, regardless of their religion. However, there is no other reference to religion anywhere in the Constitution. Even with this silence on religion, the Constitution was ratified in 1789. By not mentioning religion, the delegates were avoiding controversy, since each individual state had their idea of religious freedom. By excluding religion in the document, the statesmen could also be silently advocating the separation of religion from this new nation, as expressed by Madison; " [the Constitution was not to grant] a shadow of right in the general government to intermeddle with religion."[37]

On September 12, 1787,[38] the session of Congress was coming close to the end. George Mason, a delegate and civil libertarian, recommended that a Bill of Rights be added. He stated; "It would give great quiet to the people. . . . and with the aid of the state declarations of rights, a bill might be prepared in a few hours."[39] This request was denied by most of the delegates who were weary after months of discussion and debate over the Constitution. However, five of the eleven states which ratified the Constitution recommended that a Bill of Rights be added.[40] The Constitution had included a provision in Article V which allows for an amendment process. James Madison, after his famous speech demanding that amendments be made,[41] began to work on a Bill of Rights for the assembly of the First U.S. Congress which was to convene in New York City on March 4, 1789.[42]

The Bill of Rights was proposed to the First U.S. Congress, and there was debate on the matter. After some discussion, the Amendments were submitted to the states for ratification on September 25, 1789, and ten of the original twelve[43] Amendments proposed by Congress to the States were ratified.[44] Unfortunately, most of the records of these debates are incomplete, especially those which dealt with religion. The record of the House of Representatives was narrowed down to short summary paragraphs, and the Senate debate was conducted in secret.[45] I will give a synopsis of what happened at these debates from the scarce information provided:

We do know that there were several versions of the freedom of religion which were discussed. The one version, which was titled as Article the Third, stated; "Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed."[54] Other versions included "Congress shall make no law establishing one religious sect or society in preference to others." and "Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society."[55] Finally, on December 15, 1791, the Bill of Rights was ratified[56] and the version which was agreed upon is as follows; "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."[57]

The effect of these Amendments was to be placed upon the federal government, and were not to be applicable to the individual state governments. At the time of ratification, six states still had a type of church establishment system set up, three protestant, and three christian.[58] Many of the states, soon after, ratified their own state constitutions to provide for a separation of church and state. However, New Hampshire, Connecticut, and Massachusetts (until 1833) retained the principle of an established state church for many years afterwards.[59] The First U.S. Congress, which had passed the Bill of Rights a year before, had also enacted a bill which allowed for congressional chaplains in 1790.[60]

During the late part of the eighteenth century, revolutionary events were being performed at all levels of society. The colonists were rebelling against their overseas' ruler and a new country was being born based on the principle of an individual's (white, christian, male) rights. The founding fathers, as you have already seen, had lived in an era where church and state in some places were inseparable. The history of church and state being intertwined was deeply rooted in their thoughts and beliefs. The idea of separating church and state was a revolutionary one, to say the least. But, did these founding fathers really intend to separate religion from the government completely? These men, whom were raised in homes where christianity was deeply rooted may not have really intended to have a total alienation of religion from the government, or did they?[61]

Every year, millions of Americans celebrate July fourth in commemoration of the signing of the Declaration of Independence in 1776. The document was first drafted by Thomas Jefferson [62] and proposed to the Continental Congress in Philadelphia.[63] The document contains references to a supreme being and the protection of such a being. The references are as follows: " Nature's G-d," "[T]hat they are endowed by their Creator with certain unalienable Rights," and "with a firm Reliance on the Protection of divine Providence." The Declaration goes on to speak of all of the reasons why the colonies are declaring their independence, but religious freedom is not amongst them. The document implies that there are natural rights which are given by a deity, and it is this supreme being that will protect them in their upcoming struggles.

The Continental Congress, soon after passing the Declaration of Independence, establish a new committee to develop a seal for the newly formed United States of America.[64] This new committee consisted of Thomas Jefferson, John Adams and Benjamin Franklin. One motto which had been conceived by Franklin that was not used was "Rebellion to Tyrants is Obedience to G-d," which has obvious religious overtones. Another idea the group had was a picture of an Egyptian pharaoh riding thought the opened Red Sea pursuing the Israelites, which also has biblical overtones. The design proposed to the Congress was not agreed upon, and William Barton created the final design given to him by Charles Thomson (secretary of the Continental Congress) and based on the committee's proposals.[65] The "Eye of Providence" and the motto "E Pluribus Unum" (One out of many), which were in the committee's proposal did make it into the final design. The final design, which was approved in 1782, could be seen on the back side of the dollar bill and would have been one which would have been appreciated by the committee.[66] The words "Annuit Coeptis" were written above the Eye of Providence "indicating that it was Providence [G-d] that 'favored our undertakings'."[67] Once again, even in our nation's seal, which has been used for over two hundred years, there are outright religious connotations.

The Great Seal is not to be confused with other motto's, slogans, and pledges of this country which also have religious overtones. Most of these however, were produced years afterwards. The Motto of the United States, "In G-d We Trust," promoting belief in a supreme being, was not designated as such by the U.S. Congress until 1956.[68] The Pledge of Allegiance, was not published until 1892, and the words "under G-d" were not added into the pledge until 1954, by an act of Congress.[69]

In the following pages, I have briefly sketched the importance of the three most influential men upon the Constitution, the Bill of Rights, and the Establishment Clause. These men are George Mason, Thomas Jefferson, and James Madison. Due to their intelligence, perseverance, and insight, they have molded the way that religious freedom is seen today.

"Colonel" George Mason was a rich land owner in Virginia who never intended to become involved in politics or in war. In fact, his title of colonel was only one of respect, handed down from a long forgotten commission of an ancestors.[70] However, he was directly involved in the writing of the U.S. Bill of Rights. Sometime in 1776 he was asked by his friend George Washington,[71] and the state legislature to create a document (the Virginia Declaration of Rights) that would ensure the individual freedom of its citizens. Included in his ideas for a declaration of rights, was the idea of religious freedom. Mason's first draft, written somewhere between May 20-26, 1776 had provisions for religious freedom and idealism. He was against the idea of divine right[72] and omn has written "[t]he Idea of Man born a Magistrate, a Legislator, or a Judge is unnatural and absurd."[73] His initial draft that he composed for the legislative committee discussed toleration for the exercise of other's religions, but it does not seem from the wording that a full separation of church and state was to be enacted. His first draft reads;

After debate, perceiving most of the main thoughts and ideas of George Mason, the Virginia Legislature adopted the following wording on June 12, 1776;

George Mason, however, according to his persnal notes, would have changed the wording to include a provision against the establishment of any one sect of christianity (not of all religions) over another. His change to the declaration would have been as follows;

As stated earlier, the U.S. Bill of Rights was modeled after the Virginia Declaration of Rights, and George Mason was an integral part of the document. But what was did he intend when he wrote the religious freedom provisions? According to his writings, he was in favor of this idea of free exercise of religion. However, it is unclear that he really wanted a total separation of church and state or else he would have written "that no Religion should be favored or established," instead of only the christian sects. Or did he mean that a christian government could be created which did not establish one sect over another, but would allow for all religions to practice their religions freely?

People do not alwayspractice what they preach. Mason was against the ratification of the United States Constitution because it did not include a Bill of Rights. He was also outspoken on the issue of slavery and wrote out about its ill effects. In fact, in response to a proposed bill on slave trafficking, he wrote a letter on August 22, 1787 that stated "[e]very master of slaves is born a petty tyrant."[79] These were very harsh words coming from a man, who at his death in 1792, had about 300 slaves,[80] and had even published a fugitive slave announcement in September 1786 for the return of one of his runaway slaves.[81]

An Act for Religious Freedom, as mentioned above, was first introduced to the state legislature in 1779,[85] and tabled every year until its adoption in January 1786.[86] This was to be an addition to the religious freedoms already outlined in the Virginia Declaration of Rights.[87] The act reprimanded the magistrates and judges for not enforcing, upholding or creating laws that would coerce their own religious ideas upon others, calling their actions "sinful and tyrannical," even if they were forcing a person to follow their own beliefs.[88] The Bill states:

This Act had great weight upon the framers of the Bill of Rights when discussion of religious freedom was discussed and enacted.[90] Jefferson, however, was unable to attend the Convention of 1789.[91] His duties as the new Secretary of State of the United States called him away for business in Europe.[92] Even hundreds of miles away, his influence was felt in his prior writings and correspondents with the other delegates who did attend.[93]

Jefferson, throughout the years, was outspoken on the issue of religious freedom.[94] He has been quoted many times for his ideas on religious freedom and separation of church and state. In his own notes about the Virginia Declaration, he writes "[T]he way to silence religious disputes, is to take no notice of them."[95] In a letter to Elbridge Gerry he writes about the idea of the separation of church and state, saying; "I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another."[96]

As was the custom of the time, President's Washington and Adams had made Thanksgiving Proclamations, signifying that day as day of worship and thanks to a deity. While in office, Jefferson refused to partake in such a practice because it would violate the establishment of religion clause of the Bill of Rights.[97] In contrast, as President, Jefferson had also passed a treaty that gave money to Native American tribes to be used for religious purposes. More astonishing is his passing a bill that reimbursed missionaries for their "expenses to 'propagate the Gospel among the Heathen'."[98]

His most famous quote concerning religion and the separation of church and state was written 11 years after the Bill of Rights was ratified by the states. In response to a letter by the Danbury Baptist Association, Jefferson wrote his famous "wall of separation" dialogue. The Danbury Baptists were against the ideas of a church separated from the government. Jefferson's response, although he knew the church would be irritated,[99] read in part as follows:

James Madison was a statesman, the Fourth President of the United, and is referred to as the "Father of the Bill of Rights."[103] Madison was not in favor of any amendments to the U.S. Constitution at first, and even after he was swayed in its favor, he was not entirely enthused about them.[104] However, in the House of Representatives on June 8, 1789, he made his famous speech, that constitutional historian Robert Goldwin calls "one of the most consequential political orations in American history" demanding that amendments to the Constitution be made.[105] In Madison's speech, he spoke of how the time was ripe for amendments, and the reasons to amend the Constitution to include the individual rights, and his reasons for these amendments. He also did not want to create a separate document, but would have rather made amendments within the body of the Constitution itself. In his speech he listed how he would amend the Constitution, including adding a free exercise and an establishment clause, by stating;

He became a supporter of a Bill of Rights for two reasons; (1) To "reassure those uneasy Americans who needed reassurance" since some colonies would not ratify the constitution without assurances of personal rights in the new government, and (2) "[T]o avoid changing the Constitution, since Madison was scared that the anti-federalists would change, not amend the constitution to change the structure of the government itself.[107]

Madison's concerns with a Bill of Rights stems from his concerns with the individual State's Bills. On the issue of religion, he was concerned that the U.S. Bill of rights did not include a provision as the one adopted in Massachusetts which "authorize[s] and requires[s]. the several towns, parishes, precincts . . . to make suitable provisions, at their own expense, for the institution of the public worship of G-d, and for the support and maintenance of public protestant teachers . . . ."[108] As a member of the select committee,[109] which had the responsibility for presenting a final draft of the Bill of Rights, many of his ideas and thoughts went into the process of drafting the document into its final form, including that of the freedom of religion, including both a free exercise and an establishment clause provision.[110]

Another great work which James Madison was a part of are the Federalist Papers. These were a series of eighty-five (85) articles written by Alexander Hamilton (56), John Jay (5) and Madison (21).[111] These articles were written, and published in large newspapers to create support for the Constitution. Possibly to keep controversey to a minimum, only one of the articles included any mention of religious freedom. In one of Madison's[112] articles, he writes "In a free government, the security for civil rights must be the same as for religious rights."[113] He interjected this into a passage about disallowing the will of the majority to rule that of the minority, and how one sect (of the people) cannot force their will upon the minority.[114]

After the Constitutional Convention, Madison wrote a letter to Jefferson. In the letter he expresses what constitutional scholar Walter Berns believes is "[h]ow the religious problem was understood by the constitutional framers." The letter reads in part:

As we look back through time at these great men and documents, have we really comprehended what we set out to discover? Jefferson, Madison, and Mason, each had their own ideas of religious freedom. From their own words, there is an assumption that the government should not punish any individual for their religious beliefs, thoughts, or actions. However, it is not clear as to what their real intent behind an establishment/non-establishment of religion really was meant to be. Was religion allowed, as long as one religion was not favored over another? Were they even concerned with all religions, or were they only worried about one christian sect gaining influence over another sect? The U.S. Bill of Rights, as intended, did not take into consideration non-caucasians, women, or possibly even non-christians.[116] I have shown you their words, but what is important is how their words have been interpreted through time.

The intent of the framers can be interpreted by every historian as differing in one aspect or another. However, when it comes down to it, does it really matter what the intent of the framers really was at the time of drafting the 1st Amendment? There are two theories on how the Constitution and the Bill of Rights is to be applied. They are the intentionalists, and the interpretivists.[117] The intentionalists, adhere to a strict interpretation of the actual meaning of the framers at the time of the writing. The interpretivists believe that there is space to interpret the meaning of the Constitution, and that the meaning and effect may change as time goes on to conform with society.

I believe in the "interpretivists'' view that the Constitution is a living document which can adapt to the society which it governs. The 1990's are not the 1790's. Things, thoughts, and idealisms have changed, and with them, so has the Constitution. If the Constitution was meant to be a strict unwavering document, then a Supreme Court or a provision for adding amendments would not have been provided within the document. Even in the event someone finds a long lost document written by Mason or Madison, that states that the separation of church and state is not a separation between religion and irreligion, it would not matter, because at this time the meaning of their original statements has changed. If we strictly interpreted the Constitution as written, then we would be giving up all of the rights which we have fought for during the past 200+ years since the Constitution was enacted. Women's rights would be reduced to almost nothing, including the nullification of the right to vote. All black individuals who lived in the South would once again be slaves. And there are many more rights we take advantage of every day that would have to be reverted back to their original form, if the intent of the framer's was adhered to.

This paper was written about the original intent of the founders of this nation. This is extremely important in a historical perspective. However, times change, and as they change, the world changes with them. To live by the rules of yesteryear is dangerous, the Constitution is a living, breathing document. You would not treat a 200 year old person the same as you would treat an infant. The Constitution and the Bill of Rights have matured through the years, why should we retard this country back to a child?

The House again went into a Committee of the Whole on the proposed amendments to the constitution, Mr. Boudinot in the chair.

Article I. Section 9. Between paragraphs two and three insert "no religion shall be established by law, nor shall the equal rights of conscience be infringed"

Mr. Sylvester 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 suggested the propriety of transposing the two members of the sentence.

Mr. Gerry said it would read better if it was, that no religious doctrine shall be established by law.

Mr. Sherman 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 - As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental 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 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 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 G-d 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 might 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 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 harmful 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, or building places of worship might be construed into a religious establishment.

By the 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. [Intended irony.] He hoped, therefore, the amendment would be made in such a way as 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 pre-eminence, 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 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 was 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 hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the convention at the time they were considering the present convention. 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 considered it in the same light. Those who were called antifederalists at that time complained that they had injustice dome them by title, because they were in favor of a Federal Government, and the others were in favor of the 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 antifederalists, but rats and antirats.

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 third article,[120] as it passed the house, stand thus: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." The first motion to amend this article was by striking out these words: "Religion, or prohibiting the free the free exercise thereof." and inserting these words: "One religious sect or society in preference to others." This motion was negatived. A motion for reconsideration then prevailed, and it was decided in the negative. An unsuccessful attempt was then made to adopt, as a substitute for the third article, the following: "Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society." The question was then taken on the adoption of the third article, as it came from the House of Representatives, when it was decided in the negative. Finally, the words, "Nor shall the rights of conscience be infringed," was stricken out: in this form, the article was agreed to.

[*]. Updates are being made to this paper during February and March of 2005. This is a 2002 revision to a paper originally written in 1995. ©1995 by Lon E. Dobbs. All Rights Reserved. This paper may be copied in whole or part for non-commercial purposes without express consent of the copyright holder.

[3]. Mircea Eliade, A History of Religious Ideas, vol. I, University of Chicago Press, Chicago, ©1978, p.9. [translated from the French by Willard R. Trask] Note: Bones have been found at Choukoutein, dating to this time period.

[5]. A familiar monarch whom has been "chosen" through divine right is Queen Elizabeth II of the United Kingdom. She is both the ruling sovereign, and she is also the temporal head of the Church of England. Source: World Almanac ©1994, p. 820.

[16]. The Charter of Massachusetts Bay (March 4, 1629) by Charles I, read in part; " and incite the Natives of Country, to the Knowledge and Obedience of the only true G-d and Savior of Mankind, and the Christian Fayth, which in our Royall Intencon, and the Adventurers free Profession, is the principal Ende of this Plantacion." Source: T. Greene, p. 673.

[20]. In 1635, Roger Williams was convicted and banished by the Puritan leaders of Massachusetts for spreading "new and dangerous opinions against the authority of magistrates". In one of his writings about his "experiment" in Rhode Island, he pleaded for religious liberty listing what must be done to have religious freedom by stating "It is the will and command of G-d that (since the coming of his Son the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or anti-christian consciences and worships be granted to all men in all nations and countries . . ." Source: J. Smith (ed), pp. 4 & 11-13.

[28]. Kate Mason Rowland, The Life of George Mason 1725-1792, Russell & Russell Inc., New York, ©1964. Note (a): This document was originally thought to have been drafted by George Mason since Mason had spent much time in distributing the document to all of the influential people in Virginia.

[38]. Because the U.S. Constitution did not oppose slavery, or include a Bill of Rights, Mason opposed, and did not sign the Constitution. In total, 19 of the 55 delegates who attended did not sign the document. There were actually 65 delegates who were certified by the states, but 10 did not attend, and some historians believe that there were 9 more men who were selected, but refused their appointment, and therefore were not counted as being absent Source: World Almanac, ©1994, p.456, 460.

[43]. It is calculated that 210 different amendments were initially submitted by eight states. Without duplicates, there were almost 100 proposed amendments. There were 6 states who recommended some type of amendment concerning the freedom of religion. Source: B. Schwartz, p. 983.

[44]. The two Amendments that were not passed dealt with the following; 1) The apportionment of Representatives, and 2) Compensation of members of Congress (which was ratified as Amendment XXVII in 1992). Source: World Almanac, ©1994, p.457.

[48]. The clauses were voted upon one by one, and when they came to this clause, Representative Fisher Ames motioned for an amendment to the clause using this language, and without debate, the House accepted the provision. Source: L. Levy, p. 81.

[49]. The proposed amendment read as follows: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. Source: B. Schwartz, p. 1026.

[56]. By December of 1991, only 10 of the original 13 colonies, and the new state of Vermont had passed the Bill of Rights, giving it the 2/3rd's needed for ratification. Massachusetts, Georgia, and Connecticut did not ratify until 1939. Source: World Almanac, ©1994, pp. 456-457.

[60]. L. Levy, pp. 97-99. Note: The act, passed on Jan.7, 1990 called for chaplains to be appointed by each branch of Congress and for each to be of different denominations. Ibid., 209. Also note: Although some stated that Madison voted for the Act, there is no record of the vote, and in a letter to a Edward Livingston in 1822 he states; ". . . it was not with approbation, that the deviation from it took place in Congress when they appointed Chaplains, to be paid from the National Treasury." Ibid. p. 97. Madison also wrote in his "Detached Memoranda" in 1717 that; "The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes . . . . The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principals. . . ." Ibid, p. 98.

[61]. Belz, Hoffman, & Albert (eds.), To Form a More Perfect Union, University Press of Virginia, Charlottesville, ©1992, pp. 25-27. Note: Benjamin Franklin worked on revising the Book of Common Prayer. John Adams almost went into the clergy instead of law school. Thomas Jefferson wrote The Philosophy of Jesus, and The Life and Morals of Jesus. James Madison studied 1 year of Hebrew which Belz suggests he "seriously considered a ministerial career." Ibid. p. 27.

[62]. Note: Thomas Jefferson, on his small portable table in a room in Philadelphia, wrote the original draft of the document. The delegates made 86 changes to his draft. They eliminated 480 of the original 1817 words, that Jefferson called "deplorable." The Declaration was adopted on July 4, 1776. Not all of the delegates signed the Declaration on July 4th, Thomas McKean claims that he did not sign the document until 1781. Source: World Almanac, ©1994, p.463.

[66]. Ibid. Note: The seal was first used in an official function by George Washington on September, 16, 1782 for arranging a prisoner exchange with Britain.

[68]. Francis Scott Key wrote "And this be our motto: 'In G-d is our trust'" in the Star Spangled Banner in 1814, but this was not recognized as the nation's motto. Because of low Union morale, Rev. M. R. Watkinson wrote the Sec. of the Treasury, Salmon P. Chase and asked that "recognition of the Almighty G-d in some form [be inscribed] on our coins" because he has "felt national shame in disowning G-d as not the least of our present national disasters." "In G-d We Trust," by order of Chase, first appeared on U.S. coins in 1864 and intermittently until 1955 when Congress ordered it to be placed on all U.S. currency. Source: World Almanac, ©1994, p.463.

[69]. The original version of the Pledge of Allegiance was first published on September 8, 1892 in an issue of the Youth's Companion. The original version included the words "my flag" which was changed later to "flag of the United States of America." Source: World Almanac, ©1994, p.465.

[71]. To get an insight into what the "Father of Our County" thinks on this matter, we turn to his letter to the Hebrew Congregation of Newport, Rhode Island:

[72]. On the subject of divine right, Jefferson says that "the mass of mankind has not been born with saddles on their backs, nor a favored few [born] booted and spurred, ready to ride them legitimately, by the grace of G-d." Source: W. Berns, p. 156.

[82]. 82 Philip B. Kurland and Ralph Lerner (eds.), The Founder's Constitution, University of Chicago Press, Chicago, ©1987, vol. IV, p. 543. Note: Originally entitled "Revised Report, Plan for Government of the Western Territory. 22 Mar. 1784."

[83]. The original draft proposed by Jefferson in 1784 included a provision which would abolish slavery in the Northwest Territory after 1800, but this provision was not passed with the original Ordinance. This original proposal, besides the slavery provision did not include any provisions securing individual rights, such as the ones specified in the Bill of Rights. It was not until Nathan Dane's 1787 draft, that was passed on July 13, did it include the protection of these individual rights. Source: B. Schwartz, pp. 385-386.

[84]. The 1787 Ordinance included a provision for the protection of religion which stated; "Article I. 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 said territory." However, Article III also included a clause which stated; "Religion, morality, and nowledge being necessary to good government and happiness of mankind, schools and the means of education shall forever be encouraged. . . ." Source: P. Kurland, vol. I, p.28.

[88]. John Locke's writings, especially the Letter Concerning Toleration (1689), had a great influence upon the contents and ideas in the Act for Religious Freedom. Source: W. Berns, pp. 158-159. [See also B. Kurland, pp. 52-55].

[91]. Such as in a letter to James Madison dated December 20, 1787, where he was troubled by the absence of a Bill of Rights in the new Constitution. In listing the thing he did not like about the constitution, he stated; "First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion . . ." and then continued to list the other rights that were omitted from the Constitution. Source: J. Smith, pp. 68-69.

[92]. Nor was he present during the Philadelphia Convention of 1787, when he was in Paris as the U.S. Minister to France. Source: B. Schwartz, p. 592.

In a letter to Alexander Donald in 1788, he writes; "I equally wish that the four latest conventions . . may refuse to accede to it [the Constitution] till a declaration of rights be annexed. . . . By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of . . ." Source: B. Schwartz, p. 612

In a letter to Francis Hopkinson in 1789, he writes; "What I disapproved from the first moment also was the want of a bill of rights to guard against liberty against the legislative as well as executive branches of the government, that is to say to secure freedom of religion, freedom of . . . " Source: B. Schwartz, p. 619.

[94]. Note: However, Jefferson, as President, signed an 1802 Act which provided tax exemptions for churches in Alexandria County. Source: Smith, Page, The Constitution: A documentary and Narrative History, William Murrow & Co. Inc., New York, ©1978, p. 91.

[98]. L. Levy, p. 183. Note: Mr. Levy also notes that "Aid to Indians, under either the treaty power or the power to regulate Indian affairs, is not worth two cents as a precedent for anything else." Ibid, p. 219.

[99]. Jefferson gave a copy of this letter, before sending it to the Danbury Baptist Association, to Levi Lincoln (U.S. Attorney General), with the following note:

[102]. See Justice Rehnquist's dissent in Wallace v Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985).

[110]. Note: Justice Rehnquist had used Madison for the basis of his dissenting argument in Wallace v Jaffree, 472 U.S. 38 (1985), against the establishment clause because of Madison's original draft including the word "national" before the word "religion." But this only makes this provision non-compelling upon the States, and does not take away the intent of keeping the Federal Government from establishing any one religion. Although his points on religion versus irreligion is well taken, Madison does not specifically bring up this point, although at least four Thanksgiving Day Proclamations were issued while he was President, although he may have thought them to be improper in prior years. Source: Page Smith, pp. 90-91.

[112]. Note: There is some dispute as to whom wrote this essay. There is some evidence that its author may have actually been Alexander Hamilton. Source: J. Cooke, p. xvii.

[114]. J. Cooke, pp. 351-352. Note: This essay numbered #51 (although numbered #50 in the newspapers) was first printed on Feb. 6, 1788 in The Independent Journal, and then again on Feb. 8th in The New York Packet, and once again on Feb. 11th in The Daily Advertiser. Source: Ibid, p. 347.

[116]. Non-caucasian males were given the right to vote in 1870, with the ratification of the Fifteenth Amendment, and women were not given the right to vote until the ratification of the Nineteenth Amendment in 1920. Source: World Almanac, ©1994, pp.358-459.

[120]. There were two amendments, which were not ratified, before the First Amendment as it currently stands.