The origins of the First Amendment establishment clause (1789)

from Leonard Levy, The Establishment Clause: Religion and the First Amendment (New York: MacMillan, 1986)

[81] The Senate began debate on the House amendments on September 3 and continued through September 9. The debate was conducted in secrecy and no record exists but the bare [82] account of motions and votes in the Senate Journal. According to the record of September 3, three motions of special interest here were defeated on that day. These motions restricted the ban in the proposed amendment to establishments preferring one sect above others. The first motion would have made the clause in the amendment read: “Congress shall make no law establishing one religious sect or society in preference to others…” After the failure of this motion and of another to kill the amendment, a motion was made to change it to read: “Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society.” The final defeated motion restated the same thought differently: “Congress shall make no law establishing any particular denomination of religion in preference to another…” The Senate then adopted the language of the House: “Congress shall make no law establishing religion…”

The failure of these three motions, each of which seemed to express a narrow intent, and the adoption of the House version prove that the Senate intended something broader than merely a ban on preference to one sect. Yet, if anything is really clear about the problem of “meaning” and “intent” it is that little is clear; when the Senate returned to the clause six days later, it altered the House amendment to read: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion…” Like the three previously defeated motions, this one had the unmistakable meaning of limiting the ban to acts that prefer one denomination over others or that, to put it simply, establish a single state church.

[83] The Senate’s wording provoked the House to take action that made its intent clear, as the next step in the drafting of the amendment revealed. In voting on the Senate’s proposed amendments, the House accepted some and rejected others, including the Senate’s article on religion. To resolve the disagreement between the two branches, the House proposed a joint conference committee. The Senate refused to recede from its position but agreed to the proposal for a conference committee. The committee, a strong and distinguished one, consisted of Madison as chairman of the House conferees, joined by Sherman and Vining, and Ellsworth as chairman of the Senate conferees, joined by Paterson and Carroll. Four of the six men had been influential members of the Constitutional Convention. The House members of the conference flatly refused to accept the Senate’s version of the amendment on religion, indicating that the House would not be satisfied with merely a ban on preference of one sect or religion over others. The Senate conferees abandoned the Senate’s version, and the amendment was redrafted to give it its present phraseology. On September, Ellsworth reported to the Senate that the House would accept the Senate’s version of the other amendments provided that the amendment on religion “shall read as follows: Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof…” 0n the same day, the House sent a message to the Senate verifying Ellsworth’s report. On the next day, September 25, the Senate by a two-thirds vote accepted the condition laid down by the House.Congress had passed the establishment clause.

The one fact that stands out is that Congress very carefully considered and rejected the wording that seems to imply the narrow interpretation. The House’s rejection of the Senate’s version of the amendment shows that the House did not [84] intend to frame an amendment that banned only congressional support of one sect, church, denomination, or religion. The Senate three times defeated versions of the amendment embodying that narrow interpretation, on a fourth vote adopted such a version, and finally abandoned it in the face of uncompromising hostility by the House. The amendment’s framers definitely intended something broader than the narrow interpretation which some judges and scholars have given it. At bottom the amendment expressed the fact that the Framers of the Constitution had not empowered Congress to act in the field of religion. The “great object” of the Bill of Rights, as Madison explicitly said when introducing his draft of amendments to the House, was to “limit and qualify the powers of Government” for the purpose of making certain that the powers granted could not be exercised in forbidden fields, such as religion.

The history of the drafting of the establishment clause does not provide us with an understanding of what was meant by “an establishment of religion.” To argue, however, as proponents of a narrow interpretation do, that the amendment permits congressional aid and support to religion in general or to all denominations without discrimination, leads to the impossible conclusion that the First Amendment added to Congress’s power. Nothing supports such a conclusion. Every bit of evidence goes to prove that the First Amendment, like the others, was intended to restrict Congress to its enumerated powers. Because Congress possessed no power under the Constitution to legislate on matters concerning religion, Congress has no such power even in the absence of the First Amendment. It is therefore unreasonable, even fatuous, to believe that an express prohibition of power—“Congress shall make no law respecting an establishment of religion”—vests or creates the power, previously nonexistent, of supporting religion by aid to all religious groups. The Bill of Rights, as Madison said, was not framed “to imply powers not meant to be included in the enumeration.”

note: bracketed numbers indicate page numbers in book

return to index and cover page