First Amendment Separation of Church and State : the intent of our Founding Fathers

How America became the world's first secular republic

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

James Madison's Quaker in-laws

Awash in a sea of faith
Christian Intolerance
One Nation Under God?
That 'religious' America
Pray for Our Leaders
American Exceptionalism
Heretical Erasmus
Heretic Hunters
The Law of Nations
Learned Hand
Outcast Spinoza
City on a Hill?
Jefferson's godless original
Jefferson: Church & State
The American Moses: MLK
Divided by God (Noah Feldman)
America's Rainbow Heritage
The Founding Fathers and slavery

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I. Introduction
II. What is Religion?
III. Church and State: A Brief History
IV: Bringing Religious Freedom into America
V. What Were the Founders Thinking When They Were Writing These Documents?
A. The Declaration of Independence
B. The Seal of the United States
C. George Mason
D. Thomas Jefferson
E. James Madison
VI. Conclusion
Appendix A: Annals of Congress for Saturday, August 15, 1789
Appendix B: State Journal: Proceedings of the Senate for September, 1789
Related Sources
Heretics are Needed

Learning from outcasts :: why non-conformists and dissenters are positive

 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. The quest for religious freedom is often stated as a motivating factor in the colonization of North America. See link. Thousands of people died in Great Britain and elsewhere in Europe from the tyranny of state churches and ecclesiastical kingdoms. In America, efforts had already been made, by Quakers in Pennsylvania, Delaware, West Jersey and Rhode Island, and by the tiny Catholic colony in Maryland, to formalize religious freedom. But what about the the nation as a whole? In L.E.D's essay, he delves into these questions. 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: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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. Yet our founding Fathers did not hide their opinions.

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.

II. What is Religion?

The definition of the word "religion" is in itself diverse. Webster's Dictionary[1] gives the following definitions:

religion: (1) The state of a religious, (2) the service and worship of G-d or the supernatural, (3) commitment or devotion to religious faith or observance, (4) a personal set or institutionalized system of religious attitudes, beliefs, and practices, (5) archaic: scrupulous conformity: conscientiousness, and (6) a cause, principle, or system of beliefs held to with ardor and faith.

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.

See "mankind's psychotherapist through the ages"   [2]

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:

Religion: Latin religió originally meant 'obligation bond.' It was probably derived from the verb religáre 'tie back, tie tight' (source of English rely), a compound formed from the prefix re- 'back' and ligâre 'tie' (source of English liable, ligament, etc). It developed the specialized sense 'bond between human beings and the g-ds,' and from the 5th century it came to be used for 'monastic life' - the sense in which English originally acquired it via Old French religion. 'Religious practices' emerged from this, but the word's standard modern meaning did not develop until as recently as the 16th century.

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]

III. Religion and State: A Brief History

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 of America. 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. [Tom Paine rejected this.] 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 for the church. In modern days, this (at times) unholy alliance of history has been an embarassment for Christian apologists.

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. Much havoc, alas, grew from the idea of the coercive power of the state. The protestant state churches might blame the old Absolutism of Catholic monarchs, but now they became guilty, too. 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 emerged in Bohemia and Moravia (Hussites), while others were established 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 until the early experiments (such as William Penn's) with religious freedom. If Quakers were among the first, they flung open the door for others. Penn went to Europe, and invited "underground" or persecuted groups (like the Pietists) to his sanctuary of Pennsylvania.
See Zinzindorff and the Moravians

The first European (although this is disputed) to set forth, bringing European DNA, culture, language and religion to the Western Hemispherd was Christopher Columbus or so it is that history relates, in 1492. Spain had flourished culturally and economically during the medieval period when most of Europe languished in the "darkness" of illiteracy and poverty. Columbus' origins may be in doubt, but there is no question whose aegis he sailed under: that of Isabella and Spanish Christianity. With the defeat of the Spanish Armada in 1588, an opportunity became available for English entry into the new hemisphere. England of course shared some of the same Christian roots as Spain, but lacked the grandeur (and gold). 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, and included 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 country which Thomas Paine describes in Common Sense as:

This new world hath been the asylum for the persecuted lovers of civil and religious liberty from every part of Europe. Hither have they fled, not from the tender embrace of the mother, but from the cruelty of the monster; and it is so far true of England, that the same tyranny which drove the first emigrants home pursues their descendants still.   [13]

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 of Friends in 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". What was positive was the "heretical" individualism that trusted ordinary people -- even though they may choose what Religious Authority deemed "error." (See The Great Heretics - Quakers)

Forrest Church notes that the Quakers and Baptists were "natural allies in the struggle for religious freedom. Both had long been persecuted by state church authorites for their faith, with Quakers put to death and Baptists banished from Massachusetts in the early days of settlement. Rhode Island and Pennsylvania, the colonies founded under Baptist and Quaker auspices, sanctioned full religious liberty." [p. 134]

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, who 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]

IV. Bringing Religious Freedom into the United States

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] Later, Washington DC was selected as the new nation's capital.

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]

V. What Were They Thinking When They Were Writing These Documents?

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, who 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]

A.The Declaration of Independence

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] As originally written by Jefferson, the Declaration of Independence would have vigorously attacked the institution of slavery, and King George's role in promoting it. These were quietly removed for the sake of tact, and a politer presentation. Nevertheless, in the final version, the document contains four specific 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. Godfather of the American Revolution

B. The Seal of the United States

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, which followed an intense lobbying efforts led by the Knights of Columbus, and joined by a broad-based array of churches and other groups.[69]

C. George Mason

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 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;

That as Religion, or the Duty which we owe to our divine and omnipotent Creator, and the Manner of discharging it, can governed only by Reason and Conviction, not by Force or violence; and therefore that all Men shou'd enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience, unpunished and unrestrained by the Magistrate, unless under Colour of Religion any man disturb the Peace, the Happiness, or safety of Society, or of Individuals. And it is the mutual Duty of all, to practice Christian forbearance, Love and Charity towards Each other.[74]

The legislative committee created to draft the Virginia Declaration of Rights included the following statesmen; Thomas Jefferson, Edmund Pendleton, George Wythe, Thomas Ludwell Lee, and George Mason.[75] Most of the ideas of George Mason's draft was incorporated. The final version was adopted on May 27, 1776 by the committee, with the following corrections;

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, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, and unpunished and unrestricted by the magistrate, unless, under colour of religion, any man distribute the peace, happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.[76]

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

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 "are equally entitled to the free" exercise of religion, and according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.[77]

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;

. . . all men have an equal, natural and unalienable right to be the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of christians ought to be favored or established by law in preference to others.[78]

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 always practice what they preach. Mason opposed 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]

D. Thomas Jefferson

Thomas Jefferson, a United States President, a land owner, and statesman from Virginia was also one of the most influential men in colonial America. Among many, many other accomplishments, Jefferson helped draft the Declaration of Independence (1776) that declared the colonie's independence from England, the original draft of the Northwest Ordinance (1784)[82] forbidding slavery in the Northwest Territory after 1800,[83] a committee member in the formulation of the Virginia Declaration of Rights (1776) the the forerunner of the U.S. Bill of Rights, and the author of An Act for Establishing Religious Freedom in Virginia.[84]

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:

[T]hat no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no way diminish, enlarge, or affect their civil capacities.[89]

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 Republicans and generally supportive of Jefferson. Jefferson's response [99] read in part as follows:

Believing that religion is a matter which lies solely between man and his G-d, that he owes account to none other for his faith, or his worship, that the legislative powers of government reach actions only, and not opinions. I contemplate with sovereign reverence that act of the whole American people which declared 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 and State. [emphasis added][100]

These words became influential upon the Supreme Court's interpretation of the First Amendment. The Supreme Court used the words of Jefferson in the case of Reynolds v United States, 98 U.S. 145, 25 L. Ed. 244 (1878) in a case dealing with the free exercise of a Mormon in opposition to a federal polygamy law. In 1940 the Establishment Clause was then incorporated into the Fourteenth Amendment in the case of Cantwell v Connecticut, 310 U.S. 296 (1940). A few years later, the establishment clause was challenged in Everson v Board of Education, 330 U.S. 1 (1947). Everson, using the words of Jefferson's Danbury letter, set out the principals of the establishment clause.[101] Everson, became the source for the Lemon Test on issues of religion. This is the test (although not always used) for cases involving the establishment clause. It has been criticized by many Judges and scholars alike. Justice Rehnquist, particularly, criticized the Everson decision, and all subsequent holdings which strictly adhered to the idea of a complete "wall of separation."[102]

Can the liberties of a nation be thought secure when we have removed their
only firm basis, a conviction in the minds of the people that these liberties
are the gift of God? That they are not to be violated but with his wrath?
[Thomas Jefferson]

E. James Madison

James Madison was a statesman, the Fourth President of the United, and is referred to as both "Father of the Constitution" and the "Father of the Bill of Rights."[103] Madison was not in favor of any amendments to the U.S. Constitution at first, even though he was a strong supporter of religious freedom. Virginia was one of the states slow to ratify the Constitution. Madison was in a bind. In order to win election as a ratifying delegate he had to appease the Baptists, who were frantic that there was no formal protection spelled out for religious liberty. Baptists were one of the "dissenting" denominations, somewhat "outcast" in the view of the eastern (wealthier) churches. They were generally in the hill country inland, many were backwoods congregations, the poor Irish "borderers" scorned by the Episcopalian (Anglican) elites. Madison could not win without their support. In his famous picnic deal with Rev. John Leland, he promised the Baptists the first amendment protection of religious freedom.

Forrest Church acknowledges that Madison deserves credit for the Bill of Rights, but adds: "More accurately, without the principled obstinacy of several hundred Virginia Baptists there might have been no Bill of Rights.... It took the legislative genius of Madison to crow bar it through [that very first] Congress. [Madison had given] his word to the Baptists back home" .... and he came through for them.[104]

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;

That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.[106]

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:

When indeed the Religion is kindled into enthusiasm, its force like that of other passions is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of Religion, and while it lasts will hardly be seen with pleasure at the helm [of state]. Even in its coolest state, it has been much oftener a motive to oppression than a restraint from it.[115]

It may be of interest to note that a seminal lobbying force on (Princeton educated) Madison was a backwoods clergyman from one of the lowliest, most despised denominations of colonial times, the upland Baptists. The clergyman, John Leland, became an influence on Madison, though their social standings were separated by a gulf (in terms of status). Outcast religions such as Quakers, and the Baptists of the day, felt vulnerable and oppressed by the powerful state church (Anglican, in Virginia's case, or the Boston Puritans in the north).

VI. Conclusion [by LED]

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?

Separation of Church and State has been called the central ideological fact of American history. Together with the closely related development of religious diversity and denominational pluralism, such a distinction in a politically homogenous society was unique in Western Christendom.

Westminster Dictionary of Church History, p 760

7.   End Materials : Retrospective and Appendix

Honor Minorities
Respect Dissent

Related Sources

The most 'religious' nation on earth

The American Moses: Martin Luther King

Erasmus - light years ahead of his time

Divided by God (Noah Feldman insights)

Spinoza contribution (freedom of conscience)

American Moses: Martin Luther King

Learned Hand: Fearless Toleration

Jefferson's Original did not refer to God

Jefferson on Church and State

The Law of Nations and the Declaration

The Founding Fathers and slavery

America: awash in a sea of faith

Christianity's Historic Intolerance

Are we one nation under God?

Unique? American Exceptionalism

Johnny Bench charity autograph

The Digital Author

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