11 deleted. Deletion of that word reflected a concern that the new government might be viewed as national rather than federal, with authority over state practices beyond its enumerated powers (discussed below at 23). Madison Explains Intent. On August 15th the House considered the amendment reported by the Select Committee. Madison explained its meaning 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 at 730. He also observed that the amendment had been required by some state conventions which feared the Constitution might have given the Congress authority to make laws that "might infringe the rights of conscience and establish a national religion; to prevent these effects he presumed the amendment was intended." Id. Concern Amendment Might Harm Religion. The language of the Select Committee's proposai ("No religion shall be established by law. . . .") evoked limited concern that it might be construed adversely to religion. Peter Sylvester of New York suggested the wording of the amendment "might be thought to have a tendency to abolish religion altogether." Id. at 729.19 Benjamin Huntington of Connecticut agreed with Madison's statement of the intent, but he also expressed concern "that the words might be taken in such latitude as to be extremely harmful to the cause of religion." 1 Annals at 730. To illustrate, Huntington suggested the inability of a federal court to compel persons to support the religious societies to which they belonged, "for a support of ministers, or building of places of worship might be construed into a religious establishment." 18 National Archives and Records Service, The Story of the Bill of Rights 6 (1980). 19 At least two commentators have concluded that Sylvester thought the language might be interpreted as forbidding all governmental assistance to religion. See W. Berns, The First Amendment and the Future of American Democracy 8 (1976); M. Malbin, Religion and Politics-The Intention of the Authors of the First Amendment 7 (1978). 12 Id. At the time, Connecticut authorized religious societies to tax their members for support. 20 Madison Restates Intent. To assuage concerns such as those expressed by Sylvester and Huntington, Madison moved to insert the word "national" before religion which he thought "would point the amendment directly to the object it was intended to prevent." 1 Annals at 731. 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." Id. Samuel Livermore of New Hamshire was not satisfied with Madison's motion but did not elaborate on his objections. Id. Elbridge Gerry of Massachusetts also objected to the insertion of the word "national." Gerry's discussion reflected concerns expressed by opponents of the Constitution in state ratifying conventions that the Constitution established a national government rather than a federal government. Id. Madison withdrew his motion, but denied insertion of the word "national" would imply the government was a national one. Id."1 Livermore's Amendment. Livermore moved to amend the language to read "that Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals at 731. This proposal is identical, except for a stylistic change, to that recommended by New Hampshire when it ratified the Constitution, above at 8, and can be attributed to a desire to protect her own religious establishment." Livermore's proposal, which passed on August 15 without any recorded debate, was not the language finally adopted by the House. See I A. Stokes, Church and State in the United States 411-12 (1950). "In the course of debate, Gerry had suggested that the amendment would "read better if it was that no religious doctrine shall be established by law." I Annals at 730. Roger Sherman of Connecticut thought the amendment unnecessary because Congress had no authority whatever delegated by the Constitution to make religious establishments. Id. Daniel Carroll of Maryland was in favor of the amendment because it would tend to conciliate the minds of those who felt the rights of conscience were not well secured under the Constitution. Id. Corwin, supra note 15. 13 Final House Text. On August 20th the House passed the motion of Fisher Ames of Massachusetts (the last state to abandon an established religion in 1833) to change the wording to "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." 1 Annals at 765. With minor stylistic changes, it was ultimately sent to the Senate on August 24th. Id. at 778. The Annals of Congress do not record the debate, if any, on the Ames wording. Insofar as establishment is concerned, the Ames and House versions are indistinguishable in substance from that proposed by the Select Committee. Madison's explanations of intent give importance to this fact. 4. The Senate On September 3rd the Senate twice agreed to amend the language approved by the House. First, it approved this language: "Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed." The Senate then rejected two other versions of the amendment and a motion that the entire amendment be stricken. I DePauw, supra note 23, at 151. The Senate finally approved: "Congress shall make no law establishing religion or prohibiting the free exercise thereof." Id. On September 9th the Senate passed its final version, to which it added other guarantees of liberty (free speech, free press, peaceable assembly and petition). The Religion Clauses read: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion. . . ." Id. at 166. There are no records of the debates in the Senate. 1 Documentary History of the First Federal Congress of the United States 151 (L. DePauw ed. 1972). 24 The rejected versions were (i) "Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society." and (ii) "Congress shall make no law establishing any particular denomina 5. Ratification By The States 14 The Bill of Rights was ratified by the states with a notable lack of comment on the First Amendment." Only in the Virginia Senate was concern expressed that the First Amendment was not broad enough to prevent preferential treatment among religions (discussed below at 18). C. DIVERSITY OF RELIGIOUS PRACTICES AMONG THE STATES VIRGINIA ATYPICAL The Religion Clauses were molded to meet the needs and wishes not only of the people of Virginia, but of all the states. Their views and sentiments on the appropriate relation of government to religion varied greatly. The undue influence of Virginia's disestablishment history on Establishment Clause law (discussed below at 16-21) requires a sharp focus on the great diversity of religious practice among the states. The panorama of opinion on church-state relations found expression in the laws of the states, as succintly catalogued by Sanford H. Cobb: Two out of thirteen, Virginia and Rhode Island, conceded gia, tion of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." Id. C. Antieau, A. Downey, E. Roberts, Freedom From Federal Establishment 157 (1963). 39-015 0-84-41 15 Hampshire, Massachusetts, Connecticut, Maryland, and 26 In their practices as well, states varied. For instance, while Virginia prohibited obligatory support of any religious place or ministry," states such as Connecticut, Maryland, New Jersey, North Carolina, Pennsylvania, and Georgia recognized a right to refrain from taxation for the support of a church other than one's own, but permitted taxation for the support of a church which one had joined.28 Massachusetts and New Hampshire empowered the legislatures to authorize towns and religious societies to provide for the support of public Protestant teachers of piety, religion, and morality, although certificates of dissent directing tax support to one's own church were permitted to be filed.29 Virginia opposed incorporation of churches, while Delaware, New Jersey, and Pennsylvania permitted incorporation. Maryland permitted incorporation but was reluctant to grant corporate status in practice. South Carolina opposed incorporation for dissenting churches. New Hampshire approved incorporation for all, but in practice favored the Congregational church.30 1 It thus is evident that the great number of people who ratified the First Amendment in the states did not share a church-state tradition in common with Virginia or each other. Rather, the experience of Virginia was unique to most early Americans. It cannot reasonably be presumed to have been the desired prototype of a people who with deliberation selected IA. Stokes, supra note 20, at 444, citing S. Cobb. The Rise of Religious Liberty i America 507 (1902). Sources and Documents Illustrating the American Revolution 207 (2d ed. S. Morison ed. 1929). Antieau, supra note 25, at 36-38. I Stokes, supra note 20, at 424, 429. Antieau, supra note 25, at 82-86. |