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CRS Annotated Constitution

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FIRST AMENDMENT
RELIGION AND EXPRESSION

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.

RELIGION

An Overview

Madison’s original proposal for a bill of rights provision concerning religion read: “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 pretence, infringed.”1 The language was altered in the House to read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”2 In the Senate, the section adopted read: “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .”3 It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some[p.970]what more indefinite “respecting” phraseology.4 Debate in Congress lends little assistance in interpreting the religion clauses; Madison’s position, as well as that of Jefferson who influenced him, is fairly clear,5 but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

Scholarly Commentary.—The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that “the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,”6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. “The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration[p.971]of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”7

“Probably,” Story also wrote, “at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.9

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education,10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that “aid one religion” or “prefer one religion over another,” but as well those that “aid all religions.” Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is “preferential” governmental promotion of some religions, allowing general governmental promotion of all religion in general.11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position.12


Footnotes

1 1 Annals of Congress 434 (June 8, 1789).
2 The committee appointed to consider Madison’s proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.” After some debate during which Madison suggested that the word “national” might be inserted before the word “religion” as “point[ing] the amendment directly to the object it was intended to prevent,” the House adopted a substitute reading: “Congress shall make no laws touching religion, or infringing the rights of conscience.” 1 Annals of Congress 729–31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison’s biographer, “[t]here can be little doubt that this was written by Madison.” I. Brant, James Madison—Father of the Constitution 1787–1800 at 271 (1950).
3 This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.
4 1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison—Father of the Constitution 1787–1800, 271–72 (1950).
5 During House debate, Madison told his fellow Members that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.” 1 Annals of Congress 730 (August 15, 1789). That his conception of “establishment” was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, “comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.”’ 8 The Writings of James Madison (G. Hunt. ed.) 132–33 (1904). Madison’s views were no doubt influenced by the fight in the Virginia legislature in 1784–1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his “Memorial and Remonstrance against Religious Assessments” setting forth his thoughts. Id. at 183–91; I. Brant, James Madison—The Nationalist 1780–1787, 343–55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson’s “Bill for Religious Liberty”. Id. at 354; D. Malone, Jefferson the Virginian 274–280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.
6 3 J. Story, Commentaries on the Constitution of the United States 1865 (1833).
7 Id. at 1873.
8 Id. at 1868.
9 For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224–25 (3d ed. 1898).
10 330 U.S. 1, 15 (1947) . Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view.
11 Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then–Justice Rehnquist dissenting). More recently, dissenters, including now–Chief Justice Rehnquist, have appeared reconciled to a “constitutional tradition” in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683–84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).
12 Lee v. Weisman, 112 Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O’Connor, concurring).
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