In our email this morning:
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From: "Robert Nordlander" <nord@famvid.com>
To: <gartland1@hotmail.com>
Subject: The origins of the First Amendment establishment clause (1789)
Date: Mon, 6 Dec 2004 01:07:30 -0600
----- Original Message -----
From: Jim Watson
The origins of the First Amendment establishment clause (1789)
from Leonard Levy, The Establishment Clause: Religion and the First
Amendment (New York: MacMillan, 1986)
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[81] The Senate began debate on the House amendments on September 3 and
continued through September 9. The debate was conducted in secrecy and no
record exists but the bare [82] account of motions and votes in the Senate
Journal. According to the record of September 3, three motions of special
interest here were defeated on that day. These motions restricted the ban
in the proposed amendment to establishments preferring one sect above
others. The first motion would have made the clause in the amendment read:
“Congress shall make no law establishing one religious sect or society in
preference to others…” After the failure of this motion and of another to
kill the amendment, a motion was made to change it to read: “Congress shall
not make any law infringing the rights of conscience, or establishing any
religious sect or society.” The final defeated motion restated the same
thought differently: “Congress shall make no law establishing any
particular denomination of religion in preference to another…” The Senate
then adopted the language of the House: “Congress shall make no law
establishing religion…”
The failure of these three motions, each of which seemed to express a
narrow intent, and the adoption of the House version prove that the Senate
intended something broader than merely a ban on preference to one sect.
Yet, if anything is really clear about the problem of “meaning” and
“intent” it is that little is clear; when the Senate returned to the clause
six days later, it altered the House amendment to read: “Congress shall
make no law establishing articles of faith or a mode of worship, or
prohibiting the free exercise of religion…” Like the three previously
defeated motions, this one had the unmistakable meaning of limiting the ban
to acts that prefer one denomination over others or that, to put it simply,
establish a single state church.
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[83] The Senate’s wording provoked the House to take action that made its
intent clear, as the next step in the drafting of the amendment revealed.
In voting on the Senate’s proposed amendments, the House accepted some and
rejected others, including the Senate’s article on religion. To resolve the
disagreement between the two branches, the House proposed a joint
conference committee. The Senate refused to recede from its position but
agreed to the proposal for a conference committee. The committee, a strong
and distinguished one, consisted of Madison as chairman of the House
conferees, joined by Sherman and Vining, and Ellsworth as chairman of the
Senate conferees, joined by Paterson and Carroll. Four of the six men had
been influential members of the Constitutional Convention. The House
members of the conference flatly refused to accept the Senate’s version of
the amendment on religion, indicating that the House would not be satisfied
with merely a ban on preference of one sect or religion over others. The
Senate conferees abandoned the Senate’s version, and the amendment was
redrafted to give it its present phraseology. On September, Ellsworth
reported to the Senate that the House would accept the Senate’s version of
the other amendments provided that the amendment on religion “shall read as
follows: Congress shall make no laws respecting an establishment of
religion, or prohibiting the free exercise thereof…” 0n the same day, the
House sent a message to the Senate verifying Ellsworth’s report. On the
next day, September 25, the Senate by a two-thirds vote accepted the
condition laid down by the House.Congress had passed the establishment
clause.
The one fact that stands out is that Congress very carefully considered and
rejected the wording that seems to imply the narrow interpretation. The
House’s rejection of the Senate’s version of the amendment shows that the
House did not [84] intend to frame an amendment that banned only
congressional support of one sect, church, denomination, or religion. The
Senate three times defeated versions of the amendment embodying that narrow
interpretation, on a fourth vote adopted such a version, and finally
abandoned it in the face of uncompromising hostility by the House. The
amendment’s framers definitely intended something broader than the narrow
interpretation which some judges and scholars have given it. At bottom the
amendment expressed the fact that the Framers of the Constitution had not
empowered Congress to act in the field of religion. The “great object” of
the Bill of Rights, as Madison explicitly said when introducing his draft
of amendments to the House, was to “limit and qualify the powers of
Government” for the purpose of making certain that the powers granted could
not be exercised in forbidden fields, such as religion.
The history of the drafting of the establishment clause does not provide us
with an understanding of what was meant by “an establishment of religion.”
To argue, however, as proponents of a narrow interpretation do, that the
amendment permits congressional aid and support to religion in general or
to all denominations without discrimination, leads to the impossible
conclusion that the First Amendment added to Congress’s power. Nothing
supports such a conclusion. Every bit of evidence goes to prove that the
First Amendment, like the others, was intended to restrict Congress to its
enumerated powers. Because Congress possessed no power under the
Constitution to legislate on matters concerning religion, Congress has no
such power even in the absence of the First Amendment. It is therefore
unreasonable, even fatuous, to believe that an express prohibition of
power—“Congress shall make no law respecting an establishment of
religion”—vests or creates the power, previously nonexistent, of supporting
religion by aid to all religious groups. The Bill of Rights, as Madison
said, was not framed “to imply powers not meant to be included in the
enumeration.”
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[added by buckeye]
(1) Study Guide: Separation of Church and State - Indepth
http://members.tripod.com/~candst/studygd0.htm
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(2) The Establishment Clause
http://members.tripod.com/~candst/estclause.htm
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(3) Some Thoughts on Religion and Law
http://members.tripod.com/~candst/bthot-lr.htm
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(4) BACKGROUND COMMENTARY
" In recent discussions of religious freedom and Church-State separation in
the United States attention has been so much centered constitutionally on
the Bill of Rights that the importance of this Provision in the original
Constitution as a bulwark of Church-State separation has been largely
overlooked. As a matter of fact it was and is important in preventing
religious tests for Federal office--a provision later extended to all the
states. It went far in thwarting any State Church in the United States; for
it would be almost impossible to establish such a Church, since no Church
has more than a fifth of the population. Congress as constituted with men
and women from all the denominations could never unite in selecting any one
body for this privilege. This has been so evident from the time of the
founding of the government that it is one reason why the First Amendment
must be interpreted more broadly than merely as preventing the state
establishment of religion which had already been made almost impossible."
(SOURCE OF INFORMATION: CHURCH AND STATE IN THE
UNITED STATES, VOLUME I, Anton Phelps Stokes, D.D., LL.D, Harper & Brothers
Publishers (1950) page 527)
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(5) ''[F]or the men who wrote the Religion Clauses of the First Amendment
the 'establishment' of a religion connoted sponsorship, financial support,
and active involvement of the sovereign in religious activity."
http://supreme.lp.findlaw.com/constitution/amendment01/02.html#1
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(6) Of the eleven states that ratified the First Amendment, nine
(counting Maryland) adhered to the viewpoint that support of religion and
churches should be voluntary, that any government financial assistance to
religion constituted an establishment of religion and violated its free
exercise.(78) Some had done so from their earliest foundations; some
arrived at that stance after the American Revolution. The Maryland
constitution permitted a general assessment to support religion, but
Marylanders firmly rejected a proposal to enact one. Of the ratifying
states, only Vermont and New Hampshire adhered to the view that states
could or should provide for tax-supported religion. On a whole range of
other applications, however, Americans inherited traditions of government
interference in religious matters.
(SOURCE OF INFORMATION: The First Freedoms, Church and State in America to
the Passage of the First Amendment. Thomas J. Curry. Oxford University
Press. (1986) pp 202 - 222)
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(7) The still more important fact is that the type of article used in the
establishment clause makes no difference. The First Amendment does not say
that Congress shall not establish a religion or create an establishment of
religion. It says Congress shall make no law RESPECTING an establishment of
religion. Whether "respecting" connotes honoring or concerning, the clause
means that Congress shall make no law on that subject The ban is not just
on establishments of religion but on laws respecting them, a fact that
allows a law to fall short of creating an establishment yet still be
unconstitutional.
The Establishment Clause, Religion and the First Amendment, Leonard W.
Levy, Second Edition, Revised, The University of North Carolina Press,
(1994) p. 118
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(8) . . . it is clear that the amendment does not say, "Congress shall
make no law establishing religion," but does say "no law respecting an
establishment of religion." It t herefore cannot be construed as
authorizing Congress to support Religious institutions. {or religion, any
kind of religion.]
Religious Liberty and the Secular State, The Constitutional Context. John
M. Smomley.Prometheus Books, (1987) p. 49
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(9) James Madison And National Religion
http://members.tripod.com/~candst/madnational.htm
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
"Dedicated to combatting 'history by sound bite'."
Now including a re-publication of Tom Peters
SEPARATION OF CHURCH AND STATE HOME PAGE
and
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Speech by civil rights/constitutional lawyer and others.
This site is a member of the following web rings:
Freethought Ring--&--Freethought, Religion & Beliefs Ring
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