Posted June 1, 2006

By M. Roberts

   The phrase “separation of church and state” is so often heard in today’s public debate that many Americans actually believe it to be a part of the Constitution. Amazingly, this phrase, which has had a tremendous impact on public policy over the last 50 years, appears nowhere in the Constitution. It is, in fact, derived from a personal letter written by Thomas Jefferson to the Danbury Baptists. The Danbury Baptists had previously expressed to Jefferson their concern that the federal government could restrict their religious freedom by establishing a national church. Jefferson, writing them back, reassured them with the following:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. ¹

The “wall of separation” phrase from Jefferson’s short letter has been the basis of 50 years of court decisions that have twisted the First Amendment into something it was never intended to be: a tool for unelected judges to restrict religious freedom at all levels of American society. According to the modern courts, prayers at graduation ceremonies and displays of the Ten Commandments in state courthouses are prohibited under the First Amendment. History demonstrates that what truly is unconstitutional is the interpretation of the Establishment Clause of the First Amendment by the modern courts. An amendment that was originally intended to secure religious liberty has been turned into a tool to restrict it.

   In order to begin to uncover the true meaning of the First Amendment, it is important to understand a little about the Founding Era. After the Revolutionary War, the colonies united loosely under the Articles of Confederation, which was a document that functioned more like a treaty between nations than an actual constitution. The Articles provided for a weak central government only, and the states were allowed to largely act as autonomous nations. Because of this, each of the states managed their own trade, defense, and diplomatic concerns. Over time it became apparent that the system was unworkable because the central government had too little authority to address common concerns. The Constitutional Convention of 1787 was convened with the initial intent to only rework the Articles of Confederation. Instead, the Articles were scrapped altogether and an entirely new constitution drafted.

   Because the states were so autonomous at the time, it is very important to understand that many of them were reluctant to relinquish sovereignty to the new federal government. And having just endured a brutal war against a tyrant in England, Americans were not anxious to trade one tyranny for another. Because of this, the Constitution established a federal government with very limited powers, providing it just enough authority to handle common concerns such as trade, defense, and foreign diplomacy with the least possible restriction of state sovereignty. Despite the meticulous efforts of the Framers, many states still objected to the original draft of the Constitution because it lacked a bill of rights, which was seen as essential to protecting individual liberties from an abusive federal government. Of twelve that were proposed, ten amendments were adopted and became what we know today to be the Bill of Rights.

   A critical point to understand is that, because the Constitution established a federal government, the limitations on federal power written into the Bill of Rights apply only to the federal government. The Founders were less concerned that the state governments could become tyrannical and abusive because of their close proximity and greater responsiveness to the people. Therefore, the Establishment Clause prohibits only the federal government from establishing a religion. Thomas Jefferson confirms this:

I consider the government of the United States [the federal government] as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion [the First Amendment], but from that also which reserves to the States the powers not delegated to the United States [the Tenth Amendment]. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General [federal] Government. It must then rest with the States. ² 

Joseph Story also confirms this by explaining that the First Amendment requires that “the whole power over the subject of religion” be “left exclusively to the state governments, to be acted upon according to their own sense of justice.” ³ Because the First Amendment was intended to only limit the federal government, it would be completely permissible for the individual states to establish a state sponsored church if the citizens of that state wished to do so. However, “none of the State constitutions from the time of the American Revolution (or thereafter) established any single State denomination; most provided equal protection for all.” ⁴

   The greatest contention in the church/state debate seems to revolve around the word “establishment”. There seems to be little agreement about what legitimately constitutes a prohibited establishment of religion. The modern courts have made it clear that they interpret “establishment” very broadly, so much so that just about any public religious expression is an “establishment of religion”. Religious expressions such as prayers at graduation ceremonies, displays of the Ten Commandments in courthouses, and nativity scenes in public parks have all been prohibited as religious establishments. Historical evidence demonstrates that the modern understanding of the word “establishment” is very different from the meaning the Framers understood. The House Judiciary Committee Report of 1853-1854 describes what is required for something to be a religious establishment: 

It must have a creed defining what a man must believe; it must have rites and ordinances which believers must observe; it must have ministers of defined qualifications to teach the doctrines and administer the rites; it must have tests for the submissive and penalties for the nonconformist. ⁵

The Senate Judiciary Committee provides even more insight: 

The clause speaks of ‘an establishment of religion’. What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country . . . . [which was an] endowment, at the public expense, in exclusion of or in preference to any other, by giving its members exclusive political rights, and by compelling attendance of those who rejected its communion upon its worship or religious observances. ⁶

 The Committee continues by stating that the Founders intended the First Amendment to “prohibit ‘an establishment of religion’ such as the English Church presented.” ⁷ The Founders were fearful of two things when they drafted the Establishment Clause: tyranny and rivalry. Joseph Story addresses the first when he points to the “parent country”, which “afforded the most solemn warnings and melancholy instructions” regarding the potential tyranny of a state-sponsored, national church. He accuses the Church of England of creating a “chapter” in history filled with “dark bigotry and intolerance”. The Church of England was guilty of making such things as “apostacy, heresy, and nonconformity” to church teachings “standard crimes for public appeals” ⁸. In other words, people were being prosecuted for being unwilling to conform to the dictates of the Church of England. Tyranny was a major concern, but so also was rivalry between religious sects. It is no surprise that religious rivalry would be stirred if a specific religious sect or denomination is elevated above the others to a favored position with the government. The Founders sought to prevent such rivalries with the First Amendment, as Joseph Story explains: 

The real object of the amendment was not to countenance, much less to advance Mohametanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry between Christian sects. (emphasis added)  ⁹

The best example of an establishment of religion, and the one to which the Founders pointed, is the Church of England. The object of the First Amendment was not to prohibit or limit religious expression, but to prohibit the tyranny and rivalry possible under a nationally sponsored church similar to the Church of England. If the Ten Commandments in a state courthouse do not create a national church, then they do not violate the First Amendment. If a prayer at a graduation ceremony does not create a national church, then it also does not violate the First Amendment. For anything to be in violation of the First Amendment Establishment Clause, it must fit the criteria of a religious establishment similar to the historical Church of England.

   So far, it is clear that the First Amendment, along with the rest of the Constitution, applies only to the federal government. Only the federal government was prohibited from establishing a national church like the historical Church of England. Though states retained the authority to create state churches - religious establishments at the state level - they chose not to do so. Though the Founders sought to prevent the establishment of a national church, they never intended for the national government to be irreligious, contrary to what the modern secularist asserts. According to Joseph Story, the “general, if not universal, sentiment” during the Founding Era was that “Christianity ought to receive encouragement from the state” and any “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” among American citizens ¹⁰. This is no surprise since most Americans were of a Judeo-Christian persuasion, again, contrary to what the modern secularist asserts. This why America still has longstanding traditions like prayer in Congress and the Supreme Court along with nationally declared days of prayer. For most of America’s history, such traditions were perfectly acceptable under the First Amendment.  It is only under the interpretations of the modern courts that such traditions have come into question.

1. Jefferson’s Letter to the Danbury Baptists. (June 1998). Retrieved May 25, 2005, from http://www.loc.gov/loc/lcib/9806/danpre.html

2. David Barton, Original Intent: The Courts, the Constitution, and Religion (Aledo, TX: Wallbuilder Press, 2000), pg 25.

3. Joseph Story, Commentaries on the Constitution (Durham, NC: Carolina Academic Press, 1987), pg. 702.

4. Barton, pg. 28.

5. Barton, pg 30.

6. Barton, pg. 30-31.

7. Barton, pg. 30-31.

8. Story, pg. 702.

9. Story, pg. 701.

10. Story, pg. 700