OPEN LETTER TO ERIN DALY
Professor of Law and Associate Dean of Faculty Research and Development
Christine was absolutely right about "Separation of Church and State" not being in the First Amendment or the Constitution. As I am sure you know, but may not admit, the phrase "Separation of Church and State" comes from a letter from President Jefferson to a private group. It did not appear in Supreme Court decisional law until Reynolds v. United States, 98 U.S. 145, 164 (1878), a hundred years after the Revolution.
"Believing with you that religion is a matter which lies solely between a man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, 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.”—Thomas Jefferson, letter to the Danbury, Connecticut, Baptists.
The First Amendment was ratified in 1791, a dozen years before the Supreme Court’s 1803 decision in Marbury v. Madison. At the time of ratification, it was axiomatic that the Constitution did not give either the Supreme Court or the president any power to make laws. Therefore, the phrase should be understood to mean “the federal government” shall make no law restricting the free exercise of religion.
It effectively denies to the whole federal government the power to regulate religion or religious thought. Religious freedom came from God, according to Thomas Jefferson, not from the government; therefore, the government had no power to diminish or curtail in any way its free expression.
Joseph Story, whose Commentaries on the Constitution of the United States is still considered the standard treatise on the subject, wrote:
"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….Thus, the whole power over the subject of religion is left to the state governments…and the Catholic and the Protestant, the Calvinist and the Arminian, [sic] the Jew and the Infidel, may sit down at the common table of the national counsels, without any inquisition into their faith, or mode of worship” (Spelling as in the original).
That is the key to understanding the First Amendment establishment clause. Imagine the backlash if the United States government had tried to impose the Anglican religion, established in Virginia, on all the colonies—the Quakers in Pennsylvania, the Congregationalists in New England, and the Baptists and Catholics wherever they may be found. The Anglicans were obliged by law to attend church; taxpayer dollars supported the mission of the Church.
Anyone who denies the establishment clause prohibited only the federal government from establishing a national religion is being deliberately obtuse--or disinguinous. They don’t want to understand, they want to promote a political agenda. At the time the Constitution was signed, every state had some sort of state support for religion--from outright taxpayer support to legal prohibitions against anyone but protestants holding public office. Some did not cease state support for religion until the American Civil War.
Glenn Neal is a retired lawyer and the author of The Second American Revolution: One Way or the Other, Flyover Country Press, LLC (2010).
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Aaron B. Gardner