Rehnquist's Dissent

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Thirty-eight years ago, this Court, in Everson v. Board of Education (1947), summarized its exegesis of Establishment Clause doctrine thus:

"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.' Reynolds v. United States (1879)."

This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "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 and state." 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly forty years. Thomas Jefferson was of course in France at the time the constitutional amendments known as the Bill of Rights were passed by Congress and ratified by the states. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

Jefferson's fellow Virginian James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and state."

During the debates in the 13 colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty, the new general government carried with it a potential for tyranny. The typical response to this argument on the part of those who favored ratification was that the general government established by the Constitution had only delegated powers, and that these delegated powers were so limited that the government would have no occasion to violate individual liberties. This response satisfied some, but not others, and of the 11 colonies whichfied the Constitution by early 1787, five proposed one or another amendments guaranteeing individual liberty. Three--New Hampshire, New York, and Virginia--included in one form or another a declaration of religious freedom. [

  • ] Rhode Island and North Carolina flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights. [
  • ] Virginia and North Carolina proposed identical guarantees of religious freedom:

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

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On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution. [

  • ] Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures sought by a number of his fellow citizens which could surely do no harm and might do a great deal of good. He said, inter alia:

"It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part ourfellow citizens, the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished."[

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The language Madison proposed for what ultimately became the Religion Clause of the First Amendment was this:

"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."[

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On the same day that Madison proposed them, the amendments which formed the basis for the Bill of Rights were referred by the House to a committee of the whole, and after several weeks' delay were then referred to a select committee consisting of Madison and 10 others. The committee revised Madison's proposal regarding the establishment of religion to read:

"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed."[

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The committee's proposed revisions were debated in the House on August 15, 1789. The entire debate on the Religion Clauses is contained in two full columns of the "Annals," and does not seem particularly illuminating. [

  • ] Representative Peter Sylvester of New York expressed his dislike for the revised version, because it might have a tendency "to abolish religion altogether." Representative John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." [
  • ] Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights--that Congress had no delegated authority to "make religious establishments"--and therefore he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e would not contend with gentlemen about phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community."

Madison then spoke, and said 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." [

  • ] He said that some of the state conventions had thought that Congress might rely on the "necessary and proper" clause to infringe the rights of conscience or to establish a national religion, and "to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit."[
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Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England states, where state-established religions were the rule rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of religion, but not to patronise those who professed no religion at all."[

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Madison responded that the insertion of the word "national" before the word "religion" in the committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent." [

  • ] Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience."[
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Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal, but insisted that his reference to a "national religion" only referred to a national establishment and did not mean that the government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against.[

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The following week, without any apparent debate, the House voted to alter the language of the Religion Clause to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." [

  • ] The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate on Sept. 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."[

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The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference. The version which emerged from the conference was that which ultimately found its way into the Constitution as part of the First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The House and the Senate both accepted this language on successive days, and the amendment was proposed in this form.

On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the members of the House of the amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights. His original language "nor shall any national religion be established" obviously does not conform to the "wall of separation" between church and state idea which latter day commentators have ascribed to him. His explanation on the floor of the meaning of his language--"that Congress should not establish a religion, and enforce the legal observation of it by law" is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the select committee of the House, he urged that the language "no religion shall be established by law" should be amended by inserting the word "national" in front of the word "religion."

Vol. 04, Issue 38

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