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The Historical Purpose of the Religion Clauses
But before discussing how this reversal came about, the historical purpose of the First Amendment’s two religion clauses must be carefully examined, especially their relationship to each other. In this regard, we must first note the reason for the addition to the Constitution of the set of amendments known as the Bill of Rights, which includes the First Amendment. A set of amendments to protect the rights of individuals and states was repeatedly urged in 1787–88 during the debates in the state ratifying conventions. Alexander Hamilton stated in Federalist 84 that “the most considerable of the remaining objections” to ratification was that there was “no bill of rights” in the proposed Constitution. The promise by pro-ratification delegates to the state conventions (the “Federalists”) to add a Bill of Rights after ratification won over the states that feared that the authority being granted the new federal government would infringe upon existing rights. The most prominent Federalist of the 1780s, James Madison, “the Father of the Constitution,” duly drafted and introduced the promised Bill of Rights in the first session of the First Congress.
Yet Madison’s wording of the First Amendment’s Establishment Clause was significantly changed in what was finally approved by Congress and sent to the states for ratification. In attempting to understand the purpose of the Establishment Clause, we must examine that change.
The religion clauses for the First Amendment that Madison introduced in the House of Representatives read as follows: “The civil rights of none shall be abridged on account of religious belief or worship, [n]or shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed.” This awkward wordiness was amended by a majority of his colleagues in the House, under the leadership of Fisher Ames of Massachusetts, to read: “Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” The Senate then amended that language further to, “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” All three of these statements had the evident aim of prohibiting Congress from enacting a law that would, in Madison’s words, establish “any national religion.” And despite their various styles and various degrees of specificity, all of them protected the free exercise of religious beliefs.
As with bills today, it was a conference committee that reconciled the House and Senate versions and produced the final language of the First Amendment that Congress sent to the states for ratification. Two members of this six-member committee, Oliver Ellsworth and Roger Sherman, were from Connecticut, a state with a strong religious establishment. The language of the conference committee’s final version kept the Free-Exercise Clause that both houses of Congress preferred to Madison’s diffuse wording but rephrased the Establishment Clause in a way that significantly broadened its frame of reference. That clause’s final wording (“Congress shall make no law respecting an establishment of religion”) succinctly prohibited Congress from both enacting an establishment law of its own and disturbing the establishment laws that then existed in half the states of the Union.
The key term in this significant revision was “respecting,” a word meaning “in regard to,” according to Noah Webster’s 1806 Compendious Dictionary of the English Language, the dictionary of American usage closest in time to the writing of the First Amendment. That meaning was also given in Webster’s more scholarly, more comprehensive dictionary of 1828, An American Dictionary of the English Language, which defined “respecting” as “regarding; having regard to; relating to.” One should notice also that the reworded clause says “respecting an [i.e., any] establishment of religion” rather than “respecting the establishment of a religion.” The conference committee rejected wording that would have applied only to Congress’s passing a law to establish a religion; the chosen wording denied Congress that power, of course, but it also denied Congress the power to negate or modify by federal law any of the religious establishments in the states. Thus, the final wording of the Establishment Clause of the First Amendment that three-fourths of the states ratified in 1791 contained a double prohibition on federal authority. It forbade Congress from enacting an establishment law of its own and from interfering with any state’s existing establishment.
The establishment and free-exercise clauses in the First Amendment were thus complementary constitutional provisions with a common purpose. Each restricted federal authority with regard to religion, and together they prohibited the federal government from trespassing on the authority of the states to decide religious matters, even when that authority was used to establish a religion.
The purpose of the political promise made during the state ratifying conventions—to write a Bill of Rights for the U.S. Constitution, a promise the First Congress duly kept—was to encourage ratification of the Constitution. The Establishment Clause likewise had a political purpose—to encourage ratification of the First Amendment. For it accommodated the seven states that had establishments of religion by stipulating that “Congress shall make no law respecting an establishment of religion,” which satisfied them that under no circumstances would the powers being granted the federal government include the authority to interfere with their religious establishments.