The purpose of the 1st Amendment was not to create the idea or principle of separation of church and state. Instead, the 1st Amendment reinforced the meaning of the separation of church and state principle as it was embodied in the unamended constitution.

In the unamended constitution the government was given no authority in matters of religion: no authority to aid (promote, help, etc) or hinder religion. Matters of religion were off limits to the government, but the drafters of the Constitution were hard pressed to convince the state ratifying conventions of the built-in constitutional safeguards. Because some felt that clauses such as the Constitution's "elastic clause" might enable a future Congress to circumvent the "no power" over religion directive, Madison drafted and submitted the additional constitutional constraints that eventually became the religious clauses of the our 1st Amendment. See also, Hamilton, Alexander, Federalist Papers, #84.

The proper way to begin to understand the religious clauses of the 1st amendment is to know that they did not create anything, they only strengthened what had already been created and embodied in the unamended constitution. The following historical documentation lays the foundation for this concept.

A. The Constitution and the First Amendment

Strictly speaking, the American experiment of freedom and separation was not established in the First Amendment command that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." That experiment had been launched four years earlier, when the founders of the republic carefully withheld from the new national government any power to deal with religion. As Madison said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle" with it.(1)

The First Amendment, then, did not take away or abridge any power of the national government; its intent was to make express the absence of power.

The historian George Bancroft, in a letter to Philip Schaff, stated:
Congress from the beginning was as much without the power to make a law respecting the establishment of religion as it is now that the amendment has passed."(2)

Charles Beard made the same point:

The Constitution does not confer upon the Federal government any power whatever to deal with religion in any form or manner. . . . The First Amendment merely confirms the intention of the framers.(3)

FOOTNOTES

(1) June 12, 1788, James Madison speaking to the delegates (speaking against Patrick Henry's assertions) at the Virginia Constitutional ratifying convention, as reported on page 330, The Debates of the Several State Conventions on the Adoption of the Federal Constitution 1787, VOL III by Jonathan Elliot. J B Lippincott Company 1888)

(2) Schaff, Philip, "Church and State in the United States," Papers of the American Historical Society, 1888, p. 137.

(3) Beard, Charles, The Republic, New York, Viking Press 1944, pp. 166, 178.

SOURCE OF INFORMATION:

Church State and Freedom, Leo Pfeffer Boston, The Beacon Press (1953) p 114

MAY 29, 1787, CONSTITUTIONAL CONVENTION, PHILADELPHIA, PENNA.

Mr. CHARLES PINCKNEY laid before the House the draft of a plan of government, to be agreed upon between the free and independent States of America:-

ART. VI. . . .The Legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press [n]or shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion.

SOURCE OF INFORMATION:

Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787, Jonathan Elliot, Vol. V. Philadelphia: J. B. Lippincott Company (1888) p 128-131. The Complete Bill of Rights, The Drafts, Debates, Sources, and Origins, Edited by Neil H. Cogan. Oxford University Press (1997) p 72

(COMMENTARY:

The words. "Mr. P. plan." are omitted in the transcript, and what purports to be the plan itself is here inserted.

Madison himself did not take a copy of the draft nor did Pinckney furnish him one, as he did a copy of his speech which he Later delivered in the Convention and which is printed as a part of the debates (session of Monday. June 25). Many years later, in 1818, when John Quincy Adams. then Secretary of State, was preparing the Journal of the Convention for publication, he wrote to Pinckney, requesting a copy of his plan, end, in compliance with this request Pinckney sent him what purported to be the draft, but which appears to have been a copy of the report of the Committee of Detail of August 6. 1787, with certain alterations and additions. The alleged draft and Pinckney's letter transmitting it were written upon paper bearing the water-mark.

" Russell & Co. 1797."

The Pinckney draft was not debated; it was neither used in the Committee of the Whole nor in the Convention. It was however referred to the Committee of Detail, which appears to have made some use of it, as exracts from it have been identified by J. Franklin Jameson and an outline of it discovered by Andrew C. McLaughlin, among the papers and in the handwriting of James Wilson, a delegate from Pennsylvania, deposited with the Pennsylvania Historical Society.

SOURCE OF INFORMATION:

Bicentennial Edition, Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, With an introduction by Adrienne Koch. W. W. Morton & Company New York * London, Reissued as a Norton paperback 1987, original introduction copyright 1966, Ohio University Press, pp 33

MONDAY, AUGUST 20, 1787 - PHILADELPHIA CONVENTION

Mr. PINCKNEY submitted to the house, in order to be referred to the committee of detail, the following propositions ....

... No religious test or qualification shall ever be annexed to any oath of office under the authority of the U.S. These propositions were referred to the Committee of detain without debate or consideration of them, by the House.

SOURCE OF INFORMATION:

Bicentennial Edition, Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, With an introduction by Adrienne Koch. W. W. Morton & Company New York * London, Reissued as a Norton paperback 1987, original introduction copyright 1966, Ohio University Press, pp 486

TUESDAY, AUGUST 30TH, 1787- PHILADELPHIA CONVENTION

Mr. PINCKNEY moved to add to the art:-"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the U. States."

Mr. Sherman thought it unnecessary, the prevailing liberality being sufficient security against such tests.

Mr. GOV. MORRIS and Gen. PINCKNEY approved the motion. The motion was agreed to nem: con: then the whole article; N.C. only no-& Maryland divided.

SOURCE OF INFORMATION:

Bicentennial Edition, Notes of the Debates in the Federal Convention of 1787, Reported by James Madison, With an introduction by Adrienne Koch. W. W. Morton & Company New York * London, Reissued as a Norton paperback 1987, original introduction copyright 1966, Ohio University Press, pp 561

UNKNOWN DATE [But near the end or at the end of the Constitutional Convention in Philadelphia]

An important group memorial on the subject of religious freedom was presented to the Convention by the Baptists of New England. They sent to Philadelphia their most eminent protagonist, the Reverend Isaac Backus (1724-1806), to plead the cause."" Here is part of the plea:

It has been said by a celebrated writer in politics, that but two things were worth contending for,--Religion and Liberty. For the latter we are at present nobly exerting ourselves through all this extensive continent; and surely no one whose bosom feels the patriotic glow in behalf of civil liberty, can remain torpid to the more ennobling flame of Religious Freedom.

The free exercises of private judgment, and the unalienable rights of conscience, are of too high a rank and dignity to be submitted to the decrees of councils, or the imperfect laws of fallible legislator. The merciful Father of mankind is the alone Lord of conscience. Establishments may be enabled to confer worldly distinctions and secular importance. They may make hypocrites, but cannot create Christians. They have been reared by craft or power, but liberty never flourished perfectly under their control. That liberty, virtue, and public happiness can be supported without them, this flourishing province (Pennsylvania) is a glorious testimony; and a view of it would be sufficient to invalidate all the most elaborate arguments ever adduced in support of them.

It may now be asked--What is the liberty desired? The answer is; as the kingdom of Christ is not of this world, and religion is a concern between God and the soul with which no human authority can intermeddle; consistently with the principles of Christianity, and according to our consciences, not being obliged to support a ministry we cannot attend, while we demean ourselves as faithful subjects. These we have an undoubted right to, as men, as Christians and by charter as inhabitants of Massachusetts Bay.

SOURCE OF INFORMATION:

Humphrey, op. Cit., pp 331-333, quoting Hovey Alvah, A Memoir of the Life and times of the Reverend Issac Backus pp204-210] Church and State in the United States, Vol I, Anson Phelps Stokes D.D.LL.D, Harper & Brothers N Y, 1950, pp 529-530

DECEMBER 4, 1787 - PENNSYLVANIA STATE RATIFYING CONVENTION

JAMES WILSON. Summary of the [third] objection to the Constitution. There is no security for the rights of conscience.

JAMES WILSON. In the third place we are told, that there is no security for the rights of conscience. I ask the honorable gentleman [John Smile], what part of this system puts it in the power of Congress to attack those rights? Where there is no power to attack, it is idle to prepare the means of defense. [Emphasis added.]

SOURCE OF INFORMATION:

Personal notes and newspaper report of the proceedings and debates of the Penna constitutional ratifying convention for December 4, 1787. The Documentary History of the Ratification of the Constitution, Vol. II. Ratification of the Constitution by the States, Pennsylvania, Edited by Merrill Jensen, Madison State Historical Society of Wis, 1976, pp 467 & 471.

DECEMBER 10, 1787

There is no declaration of any kind to preserve the liberty of the press, etc. Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that Congress have no power to prohibit either, and can have no temptation. This objection is answered in that the states have all the power originally, and Congress have only what the states grant them. [Emphasis added.]

SOURCE OF INFORMATION:

Essay refuting claims made by George Mason of Virginia, written by A Landholder (Oliver Ellsworth) and published in the Connecticut Courant, December 10, 1787. The Documentary History of the Ratification of the Constitution, Vol. III, Ratification of the Constitution by the States, Delaware, New Jersey, Georgia, Connecticut, Edited by Merrill Jensen, Madison, State Historical Society of Wisconsin 1978, pp 490

DECEMBER 17, 1787

Some very worthy persons, who have not had great advantages for information have objected against that clause in the Constitution which provides that "no religious Test shall ever be required as a qualification to any office or public trust under the United States." They have been afraid that this clause is unfavorable to religion. But, my countrymen, the sole purpose and effect of it is to exclude persecution and to secure to you the important right of religious liberty. We are almost the only people in the world who have the full enjoyment of this important right of human nature. In our country, every man has a right to worship God in that way which is most agreeable to his own conscience. If he be a good and peaceable citizen, he is Liable to no penalties or incapacities on account of his religious sentiments; or, in other words, he is not subject to persecution. [Emphasis added.]

SOURCE OF INFORMATION:

Excerpt from an essay written by A Landholder VII (Oliver Ellsworth) and published in the American Mercury and the Connecticut Courant, December 17, 1787 and reprinted two more times, in Connecticut by 28 December 1787.The Documentary History of the Ratification of the Constitution, Vol. III, Ratification of the Constitution by the States, Delaware, New Jersey, Georgia, Connecticut, Edited by Merrill Jensen, Madison, State Historical Society of Wisconsin 1978, pp 497-501

JANUARY 17, 1788 SOUTH CAROLINA STATE LEGISLATURE

HON. ARTHUR SIMKINS of Ninety-six, asked, for information, whether Congress had a right to interfere in religion.

GEN. CHARLES COTESWORTH PINCKNEY answered, they had no power at all, [Emphasis added.] and explained this point to Mr Simkin's satisfaction. (The historical record doesn't provide any further explanation or information of Pinckney's response.)

SOURCE OF INFORMATION:

Tues. Jan. 17, 1788. South Carolina State Legislature which was discussing the Constitution, The Debates in the Several State Conventions on the Adoption of the Federal Consitution as Recommended by the General Convention at Philadelphia in 1787, VOL IV, by Jonathan Elliot J. B. Lippincott Company 1888. Pages 300

JANUARY 17, 1788, SOUTH CAROLINA STATE LEGISLATURE

GEN. CHARLES COTESWORTH PINCKNEY answered Mr. Lincoln on his objections. With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying any thing about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. [Emphasis added. The same applied to religious liberty.] That invaluable blessing, which deserves all the encomiums the gentleman has justly bestowed upon it, is secured by all our state constitutions ; and to have mentioned it in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it. For the same reason. we had no bill of rights its inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said, we had delegated to the general government a power to take away such of our rights as we had not enumerated; but by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution. Another reason weighed particularly, with the members from this state, against the insertion of a bill of .rights. Such bills generally begin with declaring that all men are by nature born free.

Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves. As to the clause guarantying to each state a republican form of government being inserted near the end of the Constitution the general observed that it was as binding as if it had been inserted in the first article. The Constitution takes its effect from the ratification, and every part of it is to be ratified at the same time, and not one clause before the other; but he thought there was a peculiar propriety in inserting it where if was ,as it was necessary to form the government before that government could guaranty any thing.

SOURCE OF INFORMATION:

Wed. Jan. 17, 1788. South Carolina State Legislature which was discussing the Constitution -- The Debates in the Several State Conventions on the Adoption of the Federal Consitution as Recommended by the General Convention at Philadelphia in 1787, VOL IV, by Jonathan Elliot J. B. Lippincott Company 1888. Pages 315-316

JANUARY 30, 1788

To the MINORITY Of the CONVENTION Of. Pennsylvania.
Gentlemen, The principal object of my last paper was to point out a variety of instances, in which the agency and power of the state governments are absolutely necessary to the existence of civil society, and to the execution of the federal constitution itself...

2dly. Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution. [Emphasis added.]

SOURCE OF INFORMATION:

A Freeman II, Pennsylvania Gazette, 30 January. .Three essays by "A Freeman" were published in the Pennsylvania Gazette on 23 and 30 January and 6 February in answer to the "Dissent of the Minority of the Pennsylvania Convention" The Documentary History of the Ratification of the Constitution, Vol. XV, Commentaries on the Constitution, Public and private, Vol. 3, 18 Dec. 1787 to 31 January 1788, Edited by John P Kaminski, Gaspare J. Saladino, Madison State Historical Society of Wisconsin, 1984, PP 508- 511

May 28, 1788

Excerpt from Federalist Papers # 84

ALEXANDER HAMILTON I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish; to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.(The Federalist Papers #84, Alexander Hamilton)

JUNE 10, 1788 - VIRGINIA RATIFYING CONVENTION

GOV. RANDOLPH. Freedom of religion is said to be in danger. I will candidly say, I once thought that it was, and felt great repugnance to the Constitution for that reason. I am willing to acknowledge my apprehensions removed; and I will inform you by what process of reasoning I did remove them. The Constitution provides that " the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." It has been said that, if the exclusion of the religious test were an exception from the general power of Congress, the power over religion would remain. I inform those who are of this opinion, that no power is given expressly to Congress over religion. [Emphasis added.] The senators and representatives, members of the state legislatures, and executive and judicial officers, are bound, by oath or affirmation, to support this Constitution. This only binds them to support it in the exercise of the powers constitutionally given it. The exclusion of religious tests is an exception from this general provision, with respect to oaths or affirmations. Although officers, &c., are to swear that they will support this Constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect. It Puts all sects on the same footing. A man of abilities and character, of any sect whatever, may he admitted to any office or public trust under the United States. I am a friend to a variety of sects, because they keep one another in order. How many different sects are we composed of throughout the United States! How many different sects will be in Congress! We cannot enumerate the sects that may be in Congress! And there are now so many in the United States, that they will prevent the establishment of any one sect, in prejudice to the rest, and will forever oppose all attempts to infringe religious liberty. If such an attempt be made, will not an alarm be sounded throughout America? If Congress should be as wicked as we are foretold they will be, they would not run the risk of exciting the resentment of all, or most, of the religious sects in America.

SOURCE OF INFORMATION:

June 10, 1788, "Debates of the Virginia Constitution Ratification Convention", Gov. Randolph speaking to the delegates. Page 204-205, The Debates in the Several State Conventions on the Adoption of the Federal Convention, Vol III, Jonathan Elliot, J B Lippincott Company 1888

JUNE 12, 1788 - VIRGINIA RATIFYING CONVENTION

Mr. MADISON. The honorable member has introduced the subject of religion.Religion is not guarded; there is no bill of rights declaring that religion should he secure. Is a bill of rights a security for religion?Would the bill of rights, in this state, exempt the people from paying for the support of one particular sect, if such sect were exclusively established by law? If there were a majority of one sect, a bill of rights would he a poor protection for liberty. Happily for the States, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects which pervades America, and which is the best and only security for religious liberty in any society; for where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. It is better that this security should be depended upon from the general legislature, than from one particular state. A particular state might concur in one religious project. But the United States abound in such a variety of sects, that it is a strong security against religious persecution; and it is sufficient to authorize a conclusion, that no one sect will ever be able to outnumber or depress the rest.

SOURCE OF INFORMATION:

June 12, 1788, James Madison speaking to the delegates (speaking against Patrick Henry's assertions) of the Virginia Constitutional ratifying convention, as reported on page 330, The Debates of the Several State Conventions on the Adoption of the Federal Consitution 1787, VOL III by Jonathan Elliot. J B Lippincott Company 1888

WEDNESDAY, JULY 30, 1788 - NORTH CAROLINA RATIFYING CONVENTION

MR. SPRAIGHT: As to the subject of religion, I thought what had been said would fully satisfy that gentleman and every other. No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation. [Emphasis added.]

No sect is preferred to another. Every man has a right to worship the Supreme Being in the manner he thinks proper. No test is required. All men of equal capacity and integrity, are equally eligible to offices. Temporal violence might make mankind wicked, but never religious. A test would enable the prevailing sect to persecute the rest. I do not suppose an infidel, or any such person, will ever be chosen to any office, unless the people themselves be of the same opinion. He says that Congress may establish ecclesiastical courts. I do not know what part of the Constitution warrants that assertion. It is impossible. No such power is given them.

SOURCE OF INFORMATION:

Wed. July 30, 1788. North Carolina State Constitutional Ratifying Convention debates -- The Debates of the Several State Conventions on the Adoption of the Federal Consitution as recommended by the General Convention at Philadelphis in 1787, VOL IV, by Jonathan Elliot, J. B. Lippincott Company 1888. Pages 215

AUGUST 15, 1789 FIRST FEDERAL CONGRESS (Amendments)

The House again went into a Committee of the Whole on the proposed amendments to the Constitution. Mr. Boudinot in the chair. The fourth proposition being under consideration, as follows:

Article 1. Section 9. Between paragraphs two and three insert 'no religion shall be established by law, nor shall the equal rights of conscience be infringed.

Mr. SHERMAN thought the amendment altogether unnecessary, inasmuch as Congress had 'no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out.' [Emphasis added.]

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; 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. [Emphasis added.]

SOURCE OF INFORMATION:

The Debates and Proceedings in the Congress of the United States (Annals of Congress) August 15, 1789, Vol. I, Joseph Gales,published by Gales and Seaton, Washington, 1834, pp 729-749

Representative Thomas Tucker on Church and State

Review some of Justice Joseph Story's Comments on Article VI, Section III