The Constitutional Basis for Separation of Church and State

The Constitutional Basis for Separation of Church and State

By: S. L. Guerke 7/18/2000

One of the sad truths of history is that, for most of it, mankind has lived under one form of tyranny or another. Whether it was that of a small group over the vast majority of people, or the vast majority over various minorities, the common denominator for all of them is that they merged the power of religion with the power of the state in order to control their people. This joining of the Secular and the Ecclesiastical powers, in whatever form it takes, always corrupts the state, and is equally corrupting of religion. It corrupts the state, when it uses religion to secure the authority of the state; and it corrupts religion, when it uses the state authority to secure orthodoxy over the people. As James Madison wrote in his A Memorial and Remonstrance, written in 1785:

What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the civil authority; on many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people. Rulers who wish to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not.

Two hundred and thirteen years ago, a group of men gathered in Philadelphia to create the framework for the governing of a new nation. They wished to design a system that would limit the power of government, while providing the greatest amount of freedom to the individual. A number of those participating in the Convention understood that in order to successfully limit the power of the secular government, the religious institutions needed to be forbidden access to the power of the State to impose their version of True Belief. As well, the state needed to be prevented from manipulating the religious beliefs of the people in order to press the agenda of whoever controlled the state. Realizing the great diversity of religious belief throughout the new nation, these men feared that the secular government would become embroiled in struggles for dominance between various religious sects trying to use the secular power of the state to enhance their own position over others. To preserve freedom of conscience, they included two key provisions to the framework they were designing—one in the body of the Constitution, and one in the First Amendment. These two provisions, expanded to the states by the Fourteenth Amendment, provide the basis for separation of Church and State in the United States. The secular nature of this government is evident in the Preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Note that the phrase We the People of the United States is used to state under whose authority this Constitution is being established, that of the people themselves. Madison, in his speech to the First Congress under the Constitution, proposing the Amendments that would become the Bill of Rights, said the following:

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these: First. That there be prefixed to the constitution a declaration—That all power is originally vested in, and consequently derived from the people.

Madison’s original intent is clearly reflected in the Preamble. The secular power ultimately comes from the people themselves. Nowhere in this document will you find any appeal to the divine; it’s simply: "We the People." This phrasing clearly identifies this document as a purely civil contract between the people themselves on how they should be governed. It clearly specifies the purpose and scope of this new government.

In the body of the un-amended Constitution, there is only one reference to religion. It is found in Article VI section 3, and reads as follows:

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.

Simply stated, the Government is explicitly prohibited from requiring, as a prerequisite of holding any office under the auspices of the United States Constitution, any profession of any religious belief. The implications of this are profound. No one, because of their religious beliefs, or lack of religious beliefs, can be denied the right to hold office, if elected or appointed. Nor can one be denied the opportunity to work for the government because of their religion or lack thereof. In a practical sense, this means that a Hindu, a Baptist, an Episcopalian, an atheist, or an agnostic all have an equal right to run for elective office, or to be appointed to the Cabinet, or to serve in the military. The machinery of the State cannot be used to question their religious beliefs.

The authors of the Constitution believed that Section 3 was enough to prevent the establishment of religion. However, many of the States were reluctant to ratify the Constitution because they did not believe that it was explicit. New York and North Carolina especially found this lack of a clear separation of Church and State, and several other issues, to be major hurdles in the drive to ratify the new Constitution. A quick glance at a map of the then United States is enough to demonstrate how devastating to the success of the new nation it would have been had either one, or both, opted out of joining the new government. The nation would have been effectively partitioned into two or three non-contiguous regions. Without these key States, the chances of success of this new nation’s eventual success would have gone from slim to none.

In order to address these serious concerns, the advocates for ratification promised that these issues would be addressed by the Congress in the form of proposing amendments to the Constitution as soon as the first Congress convened. James Madison, elected by this first Congress as Co-Chair of the committee given the responsibility for drafting these amendments proposed the following in his speech outlining his recommendations:

. . . The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

Again, as in his recommendation for the Preamble, Madison's intent is quite clear, and the final wording of the First Amendment, as proposed by Congress and ratified by the States, clearly reflects his intent in its first two clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

It is important to note that the Free Exercise clause is subordinate to the Establishment clause. Free Exercise does not give the majority the right to use the machinery of the State to impose their religious preferences upon those who do not share their views. Unfortunately, another of Madison's proposals, that "No state shall violate the equal rights of conscience, or the freedom of the press," failed, at the time, to be included in the proposed amendments. This extension of the prohibitions upon the Federal Government to the State Governments was not to occur until after the Civil War, when the Fourteenth Amendment was ratified:

Amendment [XIV] [1868] Section 1—All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The primary purpose behind the first section of the Fourteenth Amendment, known as the "due process clause," was to prevent the States from depriving the newly freed slaves of their rights as citizens of the United States, as well as citizens of the States they resided in. The clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," clearly limits the ability of the States to infringe upon the rights granted to citizens of the United States by the Constitution. That this extended the rights protected by the First Amendment to the states was made clear by the Supreme Court in 1925. In Gitlow vs People of State of New York 268 U.S. 652 (1925), the majority opinion (and in this aspect of the decision the two dissenters concurred) held that:

For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.

These provisions of the Constitution deny to both the Federal government and the States the authority to impose the will of the majority concerning religion. It is these provisions which create a "wall of separation between church and State," or as Jefferson explained in his famous letter to the Danbury Baptist Association:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of 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,’ thus building a wall of separation between church and State.