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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 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.

That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

If we can’t even understand the meaning of the word ‘religion’, there’s no end to the multiplicity of interpretations which can arise from the 1st amendment.

Then, is it separation of church and State, meaning a particular State, or separation of church and the Federal government, or both? The use of the words ‘church’ and ‘State’ by one of the USA Presidents, answering a particular form of hierarchical religion, within a particular State, cannot be used to infer a general meaning. Get real.

Interesting and well written. Your assessment of the influence of 14 on 1 is insightful and rarely commented on. I appreciate it.

I would offer that the aim is to achieve what would have happened if it were not for political necessity. In an ideal world the Constitution would not have allowed slavery but it was impossible under the social circumstances at the time. The same was true for Separation. At the time religion was too pervasive.

Some of the staunchest believers in liberty couldn’t see past their dogmatic blinders. To many it was as absurd to suggest granting freedom to Negros as it would be to suggest we grant freedom to a gorilla. The slaves were close to human but not quite in much the same way a donkey is close to a horse but not quite. Yes they can cross breed but such an animal is still not a horse.

To others it was as absurd to suggest separating religion from daily life as it would be to suggest we abolish Law. Even in 2010 I still have drawn out debates with Theists that can’t grasp the concept of law and morality without using some deity as the foundation.

The Founders were well aware of the Bible’s existence and could have emulated in the Constitution had they wished to make it so but they never make reference to it or God in the entire document. In fact the only reference to the divine is in the Declaration in which Jefferson indicates “their Creator” rather than a specific deity such as the Christian God. Considering the period in which these documents were written I do not think the failure to call on God’s divine authority is coincidental.

There were 3 hot issues at the time of the drafting of the constitution (1785 – 1790) regarding religion and government:
1. Whether there would be established churches in America;
2. Protection of the rights of conscience; and
3. Concerns about the power in influence of clergy in political issues.

Of these 3 issues, #3 was almost a tangential issue, #2 was almost universally held, and the real debate was about #1.

#1 concerns “established” churches: which in our historical context, refers to any particular Christian denomination that was the “official religion” of a colony and was supported by MANDATORY TAXATION of all citizens of that colony. Besides the tax burden, additional local laws regulated citizens’ behavior in religion matters, such as requiring mandatory church attendance and restricting certain activities on the Sabbath. Citizens were punished, fined, or jailed for violations. To understand this in the cultural context, consider that George Washington was afraid to travel on the Sabbath while in Massachusetts DURING his Presidency lest he offend the local religious leaders! (This despite the fact Washington was the most popular and powerful President in American history.)

Regardless of how foreign established religion seems to the modern mind, prior to 1776, 8 of the 13 colonies had established churches, i.e. an official Christian denomination that was supported by tax dollars. (In the North the Congregational denomination was the established church, and in the south it was the Anglican Church.) Despite attempts by writers like Patton and Chuck above to prove some single view held sway, the fact is the founders were divided on the issue of whether established religions should continue under the new constitution. This is perhaps best illustrated by what happened in VA in 1784. Recognizing that VA had become more religiously “pluralistic”, Patrick Henry proposed new, modified, establishment legislation which would no longer force all taxpayers to support the Anglican/Episcopal Church. Under Henry’s plan each taxpayer could choose which religious group his tax dollars should support. The legislation initially passed its first vote with a 60% majority, and counted George Washington and eventual SC Chief Justice John Marshall amongst its supporters. James Madison and Thomas Jefferson were fierce critics, and they eventually defeated the measure with the support of the Christian evangelicals of the day (how ironic!). The Baptists and Methodists were anti church establishment because they had never been “established” and did not trust government to have any power or control over their actions or beliefs. They believed religious truth would flourish on its own merits without tax subsidies.

On the other side, John and Samuel Adams were outspoken supporters of established churches. Once, when asked about dis-establishment, Adams stated that the Congregational Church in MA would be dis-established ‘only when the planets fell out of their orbits”! In fact, MA was the last state to dis-establish the Congregational Church, but not until 1820! CT had disestablished only two years earlier 1818.

Any serious discussion of the 1st Amendment must take therefore take several historical facts into account:

1. Established churches continued to exist in the US some 30 years AFTER the constitution was ratified;

2. There were diverse views on religion AND on the issue of church establishment amongst the founders. One cannot quote Jefferson’s letter to suggest it contains the definitive meaning of the 1st Amendment – it is only Jefferson’s view. Jefferson was not a member of a church, he was not even a frequent church attendee, and he was not a supporter of the establishment concept. John Adams was all three and would have responded differently to the question the Danbury Baptists posed to Jefferson which produced the “wall of separation” language.

3. From Madison’s original draft of the 1st Amendment, there were 10 subsequent “revisions” or alternative versions debated in the House. The final language is consensus language, and therefore one cannot quote Madison and suggest his views are the definitive meaning of the text. The establishment clause is compromise language as surely as is Article I Section 9 of the Constitution – which “froze” discussion on the issue of slavery for 20 years because no consensus on the issue was possible in 1788.

“Congress shall make no law respecting an establishment of religion.”

If you go back and re-read the 1st Amendment in the historical context (which I have only briefly sketched above), an objective reader will have to see the matter slightly differently that anyone has previously stated in this discussion.

“Congress” was not in Madison’s original draft, but was added in version 3. Without “Congress” in the text, it could be fairly argued that the 1st Amendment did create a wall of separation between religion and government. However, it was added for a reason – and the reason was to restrict/qualify the intent of the language ONLY to CONGRESS — and thereby to the Federal government. Given this clear conditional limitation, and the reality that established churches continued in various states for several decades AFTER ratification of the Bill of Rights, it must be argued that the ORIGINAL intent of the 1st Amendment was to:

1. RESTRICT THE POWER OF THE FEDERAL LEGISLATURE/GOVERNMENT TO ESTABLISH A NATIONAL CHURCH/RELIGION, and

2. RESTRICT THE POWER OF FEDERAL LEGISLATURE/GOVERNMENT TO INTERFERE WITH THE RIGHTS OF STATES TO ESTABLISH OR DIS-ESTABLISH ANY STATE CHURCH/RELIGION.

3. CONFIRM FREEDOM OF RELIGIOUS THOUGHT AND PRACTICE.

In conclusion, from the time the Constitution was ratified until after the Civil War, there was no “universal” separation of church and state in the US. There was a prohibition against any “federal” establishment legislation, and there was a guarantee of religious freedom. However, the states retained the right to establish (and dis-establish) churches – which is the ulitimate violation of the modern separation interpretation. Congress had no authority to legislation in any fashion (“no law”) on the matter of establishment. Therefore the 1st Amendment did NOT create a wall of separation of between church and state other than the protection of active religious freedom of thought and exercise. There was no passive protection, i.e. protection “from religion”. Establised state churches still legally existed up to 1820 and additional state churches could have been created in states where they did not exist prior to the Civil War.

After the Civil War, everything changed. The Union victory decided the superiority of federal power over states rights. The adoption of 14th Amendment in 1866 (“equal protection”) was really the incubator for the current notion of passive separation. The modern issues of prayer in schools, biology curriculum, public holiday displays, and the like were NOT the issues at hand in 1787. The modern notion of “separation of church and state” as laid out by the modern court is (and here I offer my opinion) more heavily reliant in a strict legal sense on the 14th Amendment than on the 1st, and on the “evolution of power” that has occurred (right or wrong – no value judgment here) as many rights and powers that were initially reserved to the states have been taken over by the federal government.

There is much more that could be said on this topic, but in summary, almost everything I read on this topic is flawed by a lack of historical knowledge and by the subjective need to promote a current political agenda. The “left” and the “right” are equally guilty in this regard.

In my own attempt to be an informed historian and an objective observer, I think that many of the modern court’s arguments on this topic, including the citation of Jefferson’s letter, are historically flawed and anachronistic justifications of positions that would be foreign to most of the founders. It is certainly true that many of the key founders were not “orthodox” Christians and very few were “evangelicals”, but almost all were either “religious” (deists, Unitarians, etc.) or believed that Judeo-Christian religious and moral teachings were critical to survival of the new government. I think most of the founders would not agree with the secular absolutism of some of the modern court’s decisions. I also find great humor in the fact that the loudest opponents of established religion in the 1780′s were Thomas Jefferson – who was always suspicious of Federal power – and the Evangelical church leaders of that day. I doubt either would support the secularist or separationist agendas in America today!

In the end, I find comfort in the fact that the country has survived through many great controversies in the past, and hopefully it will continue to do so.