Describing the state of affairs amongst the public around 1789, Thomas Curry wrote “Americans habitually viewed Church-State relations within the framework of a Christian or Protestant society.” (Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment [Oxford University Press, 1986], pg. 196)
One of the first things to recognize is the Constitutional amendments (and therefore, both the establishment and free exercise clauses of the first amendment) in the early American states and the decades thereafter only applied at the federal level and could not be used against the states, see Barron v. Baltimore, 32 U.S. 243 (1833). The language of the constitutional text itself says this - “Congress shall make no law…”
Several statements from the first federal Congress make it abundantly clear that this was the intent of our founding fathers:
Egbert Benson said “The committee who framed this report proceeded on the principle that these rights [freedom of speech, freedom of press] belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.” (Annals of the Congress of the United States [Washington: Gales & Seaton, 1834], 1:732)
Even James Madison, though he was a strict separationist, expressed a similar sentiment regarding the intent behind the Bill of Rights: “But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the Constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done.” (Annals of Congress, 1:432)
On June 8, 1789, James Madison introduced a draft of the First Amendment (among two others) which read, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” When the House was debating this draft, it was opposed by Thomas Tucker of South Carolina, who said “It will be much better, I apprehend, to leave the State Governments to do themselves, and not interfere with them more than we already do, and that is thought by many to be too much.” (Annals of Congress, 1:755) Madison persisted with supporting his draft, calling it “the most valuable Amendment in the whole lot. If there were any reason to restrain the Government of the United States from infringing these essential rights, it was equally necessary that they should be secured against the State Government.”
Samuel Livermore of New Hampshire motioned for Madison’s draft to be reworded as follows: “The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State.”
When all of these House Amendments were sent to the Senate, Madison’s version (including Livermore’s draft) was denied and a new version of the amendment was made with no reference to the state governments on September 8, 1789 (Documentary History of the First Federal Congress 1789–1791, ed. Linda Grant De Pauw et al. [Baltimore: Johns Hopkins University Press, 1972–?], 1:166).
“On September 7 the Senators rejected without comment the House amendment prohibiting the states from violating the rights of conscience.” (Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment [Oxford University Press, 1986], pg. 207)
“The Senate proceeded in the consideration of the resolve of the House of Representatives of the 24th of August, ‘On articles to be proposed to the Legislatures of the several States as amendments to the Constitution of the United States.’ Several amendments were proposed, but none of them were agreed to.” (U.S. Senate, September 8, 1789, Annals of Congress, 1:76)
“Resolved, That the Senate do concur in all the amendments except the first, in which they do not concur.” (September 25, 1789, Annals of Congress, 1:88)
On August 20, Fisher Ames proposed that it be altered to read “Congress shall no make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”
Due to the disagreement between the House and the Senate, the House put forth a conference with Oliver Ellsworth, James Madison, Charles Carroll, Roger Sherman, John Vining, and William Paterson.
“[The Establishment Clause’s] inclusion was intended as an implied grant of power over religion to the states as it affirmatively denied the federal government power to make any law respecting a state establishment.” (Clifton B. Kruse, Jr., “The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment,” Washburn Law Journal, [1962]. 2:65-66)
“In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general Government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of state or church authorities acknowledged by the several religious societies.” (Thomas Jefferson, “Second Inaugural Address,” March 4, 1805)
“I consider the government of the US. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U. S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.” (Thomas Jefferson, “Letter to Rev. Samuel Miller,” January 23, 1808 in The Works of Thomas Jefferson, 11:7)
Even after the ratification of the Fourteenth Amendment, the Supreme Court for quite a few decades held that it only protected rights with respect to problems on the federal level, see Twitchell v. Commonwealth, 74 U.S. 321 (1868); Slaughterhouse Cases, 83 U.S. 36 (1872); Walker v. Sauvinet, 92 U.S. 90 (1875); Presser v. Illinois, 116 U.S. 252 (1886). The incorporation doctrine (which was likely not the intent of the framers of the Fourteenth Amendment) was introduced in Spies v. Illinois, 123 U.S. 131 (1887), and the Supreme Court chose to resolve that case upon different grounds, neither affirming nor rejecting this legal argument of the plaintiff. Many of these late 19th-century cases did not view the Bill of Rights as being wholesale applicable against the states, but rather that specific things within it were covered by the Due Process clause and the Privileges and Immunities clause.
“The first ten articles of amendment were not intended to limit the powers of the states in respect of their own people, but to operate on the federal government only; but the argument is that, so far as those amendments secure the fundamental rights of the individual, they make them his privileges and immunities as a citizen of the United States which cannot now, under the Fourteenth Amendment, be abridged by a state.” (McElvaine v. Brush, 142 U.S. 158 [1891]).
“The privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government.” (Maxwell v. Dow, 176 U.S. 581 [1900]). This same type of ruling was affirmed in cases that dealt with selective incorporation, see Twining v. State, 211 U.S. 78 (1908).
“This Court has not jurisdiction, under the 25th section of the Judiciary Act, of a question whether an ordinance of the corporate authorities of New Orleans does or does not impair religious liberty. The Constitution of the United States makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws.” (Permoli v. New Orleans, 44 U.S. 589 (1845).
Similarly, in United States v. Cruikshank, 92 U.S. 542 (1876), the Court ruled that the First and Second Amendments were not to be applied against the state governments.
9 out of the 13 original American states after the ratification period still had religious establishments. That fact alone ought to govern how we think of the establishment clause and an originalist interpretation.
It is also likely, that “religion” was simply a reference to various Christian denominations, rather than all world religions which may happen to be practiced by a U.S. citizen:
"The real object of the [First] Amendment was, not to countenance, much less to advance Islam, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government......Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions" (Joseph Story, Commentaries on the Constitution of the United States, Book 3, chapter 44)
All of the above evidence ought to caution strict separationists who rail against the "threat of Christian nationalism" and smear it as anti-American merely by a simple but unqualified citation of the Establishment Clause.
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