February 23, 2012 – Essay #4 – Amendment I: The Establishment Clause – Guest Essayist:David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

The First Amendment:  The Establishment Clause

The Establishment Clause of the First Amendment might be less well known today than “the wall  of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter.  This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.

In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means.  In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty.  Unlike England, America would not have an official church.  This is good for government, and good for religion.  Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.

In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation.  Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities.  As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach . . . .”

Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools.  Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.

The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions.  For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall.  State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.

For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions.  Religion was affirmed as a public good, not an evil to be kept private.  Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution.  That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.

Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole.  “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.

Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789.  Nor was it first in the list the Congress sent to the states in September of that same year.  When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.

The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church.  In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.

David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.  Hillsdale’s free online course, “Constitution 101,” starts this week.  The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.

 

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14 Responses to “February 23, 2012 – Essay #4 – Amendment I: The Establishment Clause – Guest Essayist:David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.”

  1. Ralph T. Howarth, Jr. says:

    What is astounding is how the Establishment Clause was designed to promote a thing called “desecularization”. In laymen’s speak meaning, “get the government out of the business of the church/running the church.”

    Establishment was a term of European phenomenon where states ran the church and use the church as an advocate of the state’s sword. The Founder’s did not want this. For the state to run churches meant to…get this…”secularize” the church. This is quite to the contrary to the current meaning of “secular” society. In its root meaning, secular means to be temporal, or in other words, the affairs of this life. But the church affairs were of eternal matters of the soul and ecclesiastical orders and rites. By definition, governments tend to secular affairs because they are temporal affairs and not affairs pertaining to any divinity.

    But the Free Exercise Clause encouraged practicing of religion. The chief case in point came with the Danbury Baptists’ request to President Thomas Jefferson to intervene on their behalf to remove the prominence of the state run Congregationalist church in the state of Connecticut. Thomas Jefferson’s reply was quite to the contrary of how the courts have misrepresented the “wall of separation of church and state” clause in that he responded that he cannot come to their aid and break up the eminent role of the Connecticut state run church. In other words, the federal government cannot come in and break up a state church. This was so because at the time of the first constitution as the Articles of Confederation that led up to the current constitution and Bill of Rights, nine states had run state run churches. The First Amendment had an Establishment Clause so that the states would not be forced to disestablish their state run churches with state taxes paid for running some or all effects of a particular denomination or sect. In this, the Establishment Clause was an anti-sectarian clause; but it was not an absolute “Disestablishment Clause” requiring all states to disband all state run churches. If that were so, then the First Amendment would not have been ratified for running so counter to state’ rights on religion. Again, this is so counter to how courts interpret today.

    The court’s Lemon Test on “secular purpose” is bunk because it none other secularizes states and churches again by hook and by crook. What ought to be practiced is the “Establishment Test” in its classical terms such as: Does the practice establish a particular denomination? Liturgy? Oblations of Prayer? Rite? or Mode of Worship? If a practice such as reading the Bible cannot be established as being holden to one particular sect; but rather of many sects, then it is not an Establishment of Religion. Then the practice falls under Freedom of Religion, which the First Amendment only bars the federal governments behavior, not the states.

    Next on education, Due Process, the 14th Amendment, and “Substantive Due Process”.

  2. Ralph T. Howarth, Jr. says:

    Secularization creeps in to the church by hook and by crook in things like education. When the tax code requires non-profits to benefit the public and not just its members; but the labor laws and such require public-facing services to meet Equal Opportunity Employer codes or face fines; then the church run school or other such enterprises are faced with either having to give up their non-profit status by closing their doors as “members only” or violate their tenants of faith by affording leadership position jobs to those who practice what the church calls sin.

    To be blunt, education is not an enumerated power of the federal government in the first place, so by extension the federal courts do not have jurisdiction over education because Congress does not have power over education. To do otherwise only makes extra-ordinary judicial power over the Congress thereby breaking the Separation of Powers. The federal court, being an agent of the federal government, cannot have any jurisdiction over education when Congress does not. Now past advocates for the federal Dept. of Education have made lengthy spiels on the misconstrued “Commerce Clause” in the federal constitution saying that education affects interstate commerce because eventually the education of children eventually leads them to getting a job, which in turn means they buy goods and services that cross state lines. The courts “laughed” at such sophistry as such extension was too much of a stretch to swallow. But nevertheless the very same federal court system that denied the federal Dept. of Education absolute dicta over education, a fact that the Founder’s who wrote the constitution noted that it would require an amendment to establish a national education system, deemed itself fit to rule on things like prayer in school. And if you are a private school, the sting of federal regulation looms to secularize the private sector by secularizing the public square first, then impose standards, tax codes, certification code, and other edicts that coerce a religious organization’s behavior against its own internal practices.

    The Doctrine of Incorporation that came along in the federal court system in more recent times have erroneously usurped state’s rights by affixing the 14th Amendment Due Process Clause upon the federal Bill or Rights. Note, states like New York do not even have a freedom of religion clause in its own bill or rights so the 14th cannot uphold what the state laws do not protect! Why? Because the Due Process Clause is only a civil right to defend yourself in court. It is not a right at all outside of a court room. It is only a legal proceeding right. What has come about is this thing called “Substantive Due Process”, which goes beyond just the right to defend yourself in court; but the right to…get this…question an outcome. Since the 14th gives the federal jurisdiction to examine if a state law is applied equally, license has been taken to examine outcomes.

  3. Mag says:

    “Freedom OF Religion”…NOT “freedom FROM religion”….this is where most in government and anti-religious establishments seem to get confused. This amendment was clearly intended to allow the citizens to practice whatever religion they were to choose and not be subject to a government run (and chosen) church. Given the practices of the day when this was written, it should be abundantly clear that the intent was NOT to keep people from PUBLICLY practicing their religion. Thank you so much for this wonderful essay!!!!

    • Akolbi says:

      Are you saying that, as an atheist, i should not enjoy the same rights as the westboro baptist church?

  4. Ron says:

    I keep seeing the impact of the 17th Amendment, where the states gave away their rights. Had the states not given up their right to send their representatives to the Senate, I wonder if the 1947 Supreme Court decision might have been mitigated by Congress. Any expert comment about this?

  5. Ed Koops says:

    The Founding Fathers were in agreement that the Constitution was a governing document that could be effectively utilized by a citizenry that lived by moral standards based on Judeo Christian values. That did not mean that everyone was forced to be members of Judeo Christian churches. It just meant that a moral society could use the Constitution as a roadmap to form a government based on limited government, federalism and separation of powers. The same Founding Fathers all made statements that if moral decay were to take place the Constitution would be placed in jeopardy. And thus the moral decay and secularization that has taken place starting in the 1960’s has led to many distortions of the original intent of the phrase “Freedom Of Religion.”

  6. Doug Indeap says:

    1. A full understanding of separation of church and state rests on the Constitution as a whole, not just the First Amendment. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

    • Ralph T. Howarth, Jr. says:

      The strict constructionist view of looking at the federal Constitution as context and meaning of the document only runs so far. Example, Congress having power to issue letters of “marque and reprisal” generally is not something that cannot be known without consulting the Law of Nations. In this case, it means commissioning a pirate/private ship to undergo a mission similar to activities what the present day CIA does. Further, aside from the Preamble, the purpose of the federal constitution is to limit government and provide structure to run the government. It is not a document on the purpose of government itself. The purpose of government is given in the Unanimous Declaration of Independence. It is that purposeful document that gives life to the federal constitution.

      Your example of a Separation of Powers not being explicitly expressed in the constitution and therefore left to be derived from the text alone to then correlate to issues on religion as the constitution being purposely rather silent or absent sounds good on the surface; but the actual ratification process and debate tells another story. As for Separation of Powers, Madison did pen arguments about it in Federalists 47-51 where 51 especially is titled:

      “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”

      In there, one can see the Separation of Powers doctrine being voiced more explicitly such as:

      “In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own…”

      On the issue of religion the greatest assembly of federal constitution experts that voted on the First Amendment in that same month passed the Northwest Ordinance that mandated new states teach religion and morality in schools. That same Congress also declared the Northwest Ordinance, Declaration of Independence, the federal Constitution, and the Articles of Confederation to be the “Organic Law”, or Fundamental Law of a Government System of the country. This law was then entered into the US Code 1 at the very beginning of the federal register as the governing law of all the rest of the federal register.

    • Ralph T. Howarth, Jr. says:

      Inspection of the Organic Laws finds the following words concerning religion and morality:

      Year of our Lord (Constitution, Articles, Ordinance)
      Divine Providence (Declaration)
      Creator (Declaration)
      Nature’s God (Declaration)
      Appealing to the Supreme Judge of the world (Declaration)
      the Great Governor of the world (Articles)
      Religion (Bill of Rights, Articles, Ordinance)
      Establishment of Religion (Bill of Rights) [aka: state run church]
      Morality (Ordinance)
      Mode of worship (Ordinance)
      Religious sentiments (Ordinance)
      Religious Test (Constitution)
      Blessings of Liberty (Constitution) [blessings: Middle English lit. “anoint with blood”]
      Good Behavior (Constitution, Ordinance) [syn. “morality”]
      Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

  7. Doug Indeap says:

    2. You emphasize that the First Amendment constrains only the federal government–as if that were doubted–and suggest some dissatisfaction with the incorporation doctrine employed in Everson and other decisions, but offer no explanation why you disagree with the Supreme Court’s interpretation of the 14th Amendment, which guarantees individual rights against infringement by states, including equal protection and due process of law and the rights and privileges of citizenship. As the Amendment did not come with a handy glossary of terms explaining exactly what rights are encompassed within those terms, the Court looked to the Bill of Rights, reasoning that there are found the rights we hold most fundamental, and ruled that at least some of those, including freedom of religion and freedom from government established religion, are protected from state infringement. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend that Amendment’s constraints to state governments. (Indeed, during consideration of the Bill of Rights, Madison expressed a preference that the Amendment govern states as well.)

    • Ralph T. Howarth, Jr. says:

      True, Madison did seek to make Article the Fourteenth on the Bill of Rights to impose the Article the Third (known today as the First Amendment) on the states; but that article was killed in the Senate by reason that senators were to patriotic to their states to make protection of such rights federal and state. But the Fourteenth Amendment that came up after is by no means an expressed application of the Bill of Rights upon the states, as is epitomized in your statement: “the Amendment did not come with a handy glossary of terms exactly encompassed within those terms.” In the days of ratification of the Fourteenth Amendment what was the “glossary of terms” was a handful of the legal dictionaries of the day like Sir William Blackstone’s Commentaries of the Laws of England, the Law of Nations, and other such references. These were the American Lawyer’s Bible for the day and there was no smoke and mirrors of innuendos behind the terms. Put simply, Equal Protection of the Laws simply means, “the right to sue somebody concerning the law.” Due Process likewise means, “the rights you have to defend yourself in court.” They are simply classical “civil rights” that are given so that commoners who do not know the law have recourse in courtrooms. As these are simply legal proceeding rights, they are not rights that have any bearing outside the courtroom. They only assure that laws, especially state laws in the context of the Fourteenth Amendment, are not made without affect in the courtroom due to race or other such demographic. The only thing the Fourteenth does is permit the federal court to see if legal proceedings are followed, not the making of any opinion concerning the state laws themselves, and certainly not at all concerning the trying of the facts of a case. Last, none of the 37 states that existed at the time of the ratification of the Fourteenth Amendment intended for the federal system to be upended in one stroke. It was the courts’ Doctrine of Incorporation that came about later in the 1920’s that began to apply the federal Bill of Rights to state laws; but they did not apply all of those rights at once, and to date the Sixth, Seventh, and Eight Amendments are not wholly incorporated onto the states. So far the federal courts have not required state courtrooms to make civil and criminal suits and jury structures to be as uniform across the United States as the federal Bill of Rights deems to be. So the Doctrine of Incorporation is still spurious; and most of all, none of the state ratifying conventions every intended for such an interpretation. What takes the cake is the fact that any commoner across the entire land can take up and inquire into just what is the “handy glossary” behind the Fourteenth Amendment and learn for themselves that the federal system is still in tact. And it is a great travesty to justice if a commoner cannot see the law for themselves because of the want to consult what spurious courts opinions do make.

  8. yguy says:

    [The founders] did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity),

    The problem being, of course, your specious assumption of mutual exclusivity, when in fact the two are inextricably interwoven, since as Penn observed, those who are not ruled by God must be ruled by tyrants.

    (2) saying nothing to connect that government to god(s) or religion,

    Which was hardly necessary, any more than it was to codify in the Constitution that unalienable rights were endowed by the Creator.

    (3) saying nothing to give that government power over matters of god(s) or religion,

    Of course not, but that hardly precludes We the People from exercising power over government in such matters…

    (4)and , indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office.

    …which can (and should) easily be done, without the need for any such tests.

    Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice.

    Intentional, certainly; “remarkable for the norms of the day”, hardly. Had there been any significant conflict between that clause and those norms, it would never have made it into the document, much less have been ratified by all the states.

  9. yguy says:

    2. You emphasize that the First Amendment constrains only the federal government–as if that were doubted–and suggest some dissatisfaction with the incorporation doctrine employed in Everson and other decisions, but offer no explanation why you disagree with the Supreme Court’s interpretation of the 14th Amendment, I think the author may be forgiven for such negligence, seeing J. Black did not, at least in Everson, bother to provide anything resembling a cogent rationale by which the establishment clause is incorporated as a consequence of anything in 14A.

    which guarantees individual rights against infringement by states, including equal protection and due process of law and the rights and privileges of citizenship. As the Amendment did not come with a handy glossary of terms explaining exactly what rights are encompassed within those terms, the Court looked to the Bill of Rights, reasoning that there are found the rights we hold most fundamental,

    I don’t know which ruling you refer to, but such reasoning is patently flawed. Clearly no right is more fundamental than the right to life; yet its only mention in the BoR, if the due process clause is meant to enumerate it, is hopelessly equivocal, reserving as it does the right of the government to take life after providing due process.

    Your fundamental error, of course, is that you think of the BoR as a grant of rights from the People to individuals, when in fact any rights it does grant are merely positive, and serve – along with purely restrictive provisions like the establishment clause – as a means of constraining the government from infringing on unalienable rights, which are to be found in the harmony of the individual with the Creator and nowhere else.

    While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments, e.g., the 14th, could extend that Amendment’s constraints to state governments. (Indeed, during consideration of the Bill of Rights, Madison expressed a preference that the Amendment govern states as well.)

    We have no reason to care about any amendments any of the founders may have imagined or preferred. The legitimate objects of our attention are the constitutional provisions which have been duly ratified, and there is not one among them which provides for application of the establishment clause against the states.

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