The First Amendment: What it Says, What it Means

This is Part Six of a six-part series titled “THE BIBLE, THE CONSTITUTION, AND THE JURISDICTIONAL SEPARATION OF CHURCH AND STATE.” If you would like a full illustrated transcript of this series, send an email to [email protected]

“Getting to Know Your Church-State Jurisdictions” is Part One in this series, “The Biblical Model of Church and State” is Part Two, Part Three is “Can Secularism Account for Morality in Government?, Part Four is “Biblical Examples of Church and State Jurisdictional Separation, and Part Five is “We Don’t Live Under Caesar.”

Does the First Amendment require a secular government? Is the First Amendment violated when Christians apply biblical principles as they relate to the civil sphere to public policy issues? Too many debates over the meaning of the First Amendment are confused by a failure to cite it accurately or comprehensively: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” An accurate interpretation of the amendment must include the following:

• There is no mention of the words “church,” “state,” or “separation” in the First Amendment.

• Included in the amendment are additional rights which relate to the free exercise of religion: the right to talk about religion (freedom of speech), the right to publish religious works (freedom of the press), the right of people to worship publicly, either individually or in groups (freedom of assembly), and the right to petition the government when it goes beyond its delegated constitutional authority in these areas (the right of political involvement).

• The prohibition in the First Amendment is addressed exclusively to Congress. Individual states and governmental institutions (e.g., public schools, Capitol building steps of religious displays, National Parks, etc.) are not included in the amendment’s prohibition. As clear as this is, some try to rewrite the First Amendment to fit their misconceptions about its meaning and implementation. One way is to make the amendment apply to the states, as in this example: “The First Amendment to the U.S. Constitution is the direct descendant of Jefferson’s Virginia resolution, and its words are quite clear. Congress, and by extension the states, ‘shall make no law respecting an establishment of religion.’”[1] If the constitutional framers wanted to include the phrase “and by extension the states,” they would have done so. Since the states insisted on including a Bill of Rights to protect them from Congress, why would they include an amendment that restricted their sovereignty?

• There is no mention of a freedom from religion. The First Amendment offers no support of a position that would outlaw religion just because it exists or offends those of a different religion or those who have no religion at all.

• There is a second part to the religion clause of the First Amendment that states that Congress cannot “prohibit the free exercise thereof.” In a June 19, 2000 ruling by the Supreme Court, the majority of justices outlawed student-led prayer at high school sporting events. For example, a teacher of political science and constitutional law at Agnes Scott College in Decatur, Georgia, in support of the Court’s decision, never quotes the clause that mandates that there can be no prohibition of “the free exercise of religion.”[2]

With so much debate, how does anyone know what the First Amendment means? An interpreter of any document as important as the Constitution must consider the historical circumstances that led to its formation, the vocabulary of the period, documents of similar construction, the political views of the authors, the prevailing religious worldview, and the intended audience. With these points in mind, it would be wise, therefore, to follow the method suggested by Thomas Jefferson in understanding the original meaning of the First Amendment:

On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.[3]

James Wilson (1742–1798), one of only six men who signed both the Declaration of Independence and the Constitution, and who also served on the Supreme Court, offered similar sound advice.

“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”[4] As Oliver Wendell Holmes put it, “A page of history is worth a volume of logic.”[5]

The First Amendment’s History

With this brief introduction, let’s look into the history behind this much referred to but often misquoted, misunderstood, and misapplied amendment. When the Constitution was sent to the states for ratification, there was fear that the new national government had too much power. It was then proposed that additional prohibitions should be listed in the Constitution to restrict further the national government’s power and authority.

The area of religion was important enough that a number of the framers were concerned that the federal government would establish a national Church (e.g., Anglican, Presbyterian, or Congregational) to be funded by tax dollars and that a national Church would disestablish some of the existing state churches. So then, the First Amendment was designed to protect the states against the national (federal) government. The amendment was not designed to disestablish the Christian religion as it found expression in the state constitutions or anywhere else.

Justice Joseph Story, a Supreme Court justice of the nineteenth century, offers the following commentary on the amendment’s original meaning:

The real object of the First Amendment was not to countenance, much less to advance Mohammedanism [Islam], or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects [denominations] and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government.[6]

Story shows the amendment’s purpose was “to exclude all rivalry among Christian sects.” This assessment presupposes that Christianity was the accepted religion of the colonies but that no single sect should be mandated by law. The amendment was to keep Congress from interfering with the business of the states.

The Establishment Clause

The restriction outlined in the First Amendment only applies to Congress: “Congress shall make no law.” Writing the minority opinion in the 1985 Wallace vs. Jaffree case, Supreme Court Justice William Rehnquist stated, “The Framers intended the Establishment Clause to prohibit the designation of any church as a ‘national’ one. The clause was also designed to stop the Federal government from asserting a preference for one religious denomination or sect over others.”[7]

If the amendment had been constructed to remove religion from having an impact on civil governmental issues, then it would seem rather strange that on September 24, 1789, the same day that it approved the First Amendment, Congress called on President Washington to proclaim a national day of prayer and thanksgiving which read:

That a joint committee of both Houses be directed to wait upon the President of the United States to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness.[8]

This proclamation acknowledges “the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness.” It’s beyond laughable that a group of men who supposedly just separated religion from government at all levels would then thank God for excluding Him from the newly formed civil government. This resolution uses devoutly religious language to acknowledge that they would not even have a government without God’s blessing.

Historical Fiction

The origin of the “separation between Church and State” phrase has a long history. “Martin Luther (1483–1546) wrote of a ‘paper wall’ between the ‘spiritual estate’ and the ‘temporal estate.’ In his Institutes of the Christian Religion, John Calvin (1509–1564) asserted that the ‘spiritual kingdom’ and the ‘political kingdom’ ‘must always be considered separately’ because there is a great ‘difference and unlikeness … between ecclesiastical and civil power,’ and it would be unwise to ‘mingle these two, which have a completely different nature.’”[9]

Connecticut, Anglican divine and theologian Richard Hooker (1554–1600) described “walls of separation between … the Church and the Commonwealth” in his Of the Laws of Ecclesiastical Polity. While no one can be sure whether Jefferson borrowed the phrase from Hooker, we do know that Jefferson owned a copy of Ecclesiastical Polity, and “it was among the volumes he sold to the Library of Congress.”[10] The phrase was also used by Roger Williams (1603?–1683), the founder of Rhode Island as well as the Scottish schoolmaster James Burgh (1714–1775).[11] The most noted reference, however, is a letter Thomas Jefferson wrote to a group of Baptist pastors in Danbury, Connecticut, in 1802. In that letter he wrote:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for 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.[12]

Jefferson had no hand in the drafting of the Constitution or the Bill of Rights. He was in France at the time. While Jefferson’s opinions are instructive, and written more than a decade after the drafting of the First Amendment, they remain opinions. His personal correspondence, even as President, has no legal standing. In addition, Jefferson’s use of the phrase “separation between church and state” is “a mere metaphor too vague to support any theory of the Establishment Clause.”[13] Yet, it is Jefferson’s vague “metaphor” that has been adopted as the standard substitute for the actual language of the First Amendment.

While Jefferson used the phrase in his letter to the Danbury Baptist Association, it was not found in any legal opinion until 1947 when Justice Hugo Black used it to address the problem of parochial school transportation in Everson v. Board of Education. While Americans did not want the system of government that was operating in Europe, they also didn’t want a secular government.

When he was governor of Virginia, Jefferson readily issued proclamations declaring days of “public and solemn thanksgiving and prayer to Almighty God.”[14] Jefferson’s Virginia “Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers,” was introduced by James Madison in the Virginia Assembly in 1785 and became law in 1786. The section on Sabbath desecration reads:

If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.[15]

As president, Jefferson included a prayer in each of his two inaugural addresses. He signed bills appropriating money for chaplains in Congress and the armed services, and signed the Articles of War, which not only provided for chaplains but also “earnestly recommended to all officers and soldiers, diligently to attend divine services.”[16]

Jefferson advocated that the tax-supported college of William and Mary maintain “a perpetual mission among the Indian tribes” which included the instruction of “the principles of Christianity.” Jefferson’s proposed curriculum for the University of Virginia included a provision for a “professor of ethics” who would present “the Proofs of the being of God, the Creator, Preserver, and Supreme Ruler of the universe, the Author of all the relations of morality, and of the laws and obligations these infer.”[17] While Jefferson was against ecclesiastical control of education, he was not against the teaching of religion in state-supported institutions.

Along with Benjamin Franklin, Jefferson proposed that the design for the nation’s seal should include the biblical image of Pharaoh’s army being destroyed as it passed through the Red Sea. The banner “Rebellion to Tyrants is Obedience to God” was to circle the overtly religious image.

In his Second Inaugural Address (1805), Jefferson stated, “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 [stipulate] the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the church or state authorities acknowledged by the several religious societies.”[18] According to Jefferson, the federal (“General”) Government has no jurisdiction over churches or state governments. “Many contemporary writers attempt to read back into the past a ‘wall of separation’ between church and state which in fact never has existed in the United States.”[19]

The Northwest Ordinance

The meaning of the First Amendment, as history will attest, has nothing to do with separating the moral aspects of the Christian religion from civil affairs. The Northwest Ordinance of 1787, enacted by the Continental Congress and reenacted by the newly formed federal government in 1789 after it had agreed on the final wording of the First Amendment, stated that “good government” must be based on some moral foundation: “Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.”

Michael J. Malbin writes:

The First Congress did not expect the Bill of Rights to be inconsistent with the Northwest Ordinance of 1787, which the Congress reenacted in 1789. One key clause in the Ordinance explained why Congress chose to set aside some of the federal lands in the territory for schools: “Religion, morality, and knowledge,” the clause read, “being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.” This clause clearly implies that schools, which were to be built on federal lands with federal assistance, were expected to promote religion as well as morality. In fact, most schools at this time were church-run sectarian schools.[20]

Constitutional scholar Leo Pfeffer writes, “[F]or all practical purposes Christianity and religion were synonymous.”[21] Our founders never supposed that moral precepts founded on the Christian religion should be excluded from policymaking even though they worked diligently to keep the institutions and jurisdictions of Church and State separate.

Strict separationists do not see the Northwest Ordinance as convincing evidence that the constitutional framers regarded religion, politics, and morality as an acceptable mix. Robert Boston, an absolute separationist, asserts that if the founders had wanted to support religion the Northwest Ordinance would have ended, “. . . schools and churches shall forever be encouraged.”[22] Boston assumes that since the delegates did not call for the support of churches that this meant they were opposed to mixing religion and politics. The source of Boston’s confusion comes from the “tendency to employ the words ‘Church’ and ‘religion’ as synonyms. To maintain that there must be a separation between Church and State does not necessarily mean that there must be a separation between religion and State.”[23]

I wonder how the ACLU would react to the Northwest Ordinance if its principles were applied to today’s public schools. Lawyers would be immediately dispatched to assert that the Ordinance was unconstitutional because it mixes religion and morality with public education. Those in Jefferson’s day did not find a problem with this combination, either constitutionally or practically.

Conclusion

The First Amendment “provides a legal separation between Church and State: not a moral nor a spiritual separation…. There is no reason, under the Constitution of the United States, why the principles of Christianity cannot pervade the laws and institutions of the United States of America.”[24] Today’s Christian political activists are not calling on the State to establish churches, force people to attend church, or pay for the work of the church. They are simply maintaining that we cannot have good government without a moral foundation and that moral foundation resides in the Christian religion.

[1]Editorial Page, Atlanta Constitution (November 15, 1994), A18.

[2]Gus Cochran, “Court rightfully tosses prayers,” Atlanta Constitution (June 20, 2000), A9.

[3]Letter to Justice William Johnson, Monticello, June 12, 1823. See Thomas Jefferson, Thomas Jefferson: Writings (Autobiography, Notes on the State of Virginia, Public and Private Papers, Addresses, Letters) (New York: The library of America, 1984), 1475

[4]James Wilson, Of the Study of Law in the United States (1790).

[5]New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Quoted in Daniel L. Dreisbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment (Westchester, IL: Crossway Books, 1987), xiii.

[6]Quoted by Judge Brevard Hand, in Jaffree vs. Board of School Commissioners of Mobile County, 544 F. Supp. 1104 (S. D. Ala. 1983) in Russell Kirk, ed., The Assault on Religion: Commentaries on the Decline of Religious Liberty (Lanham, NY: University Press of America, 1986), 84.

[7]Wallace v. Jaffree, 472 U.S., 113. Jude P. Dougherty, “Separating Church and State,” The World & I (December 1987), 686.

[8]The Annals of the Congress, The Debates and Proceedings in the Congress of the United States, Compiled From Authentic Materials by Joseph Gales, Senior (Washington, DC: Gales and Seaton, 1834), 1:949-50.

[9]Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002), 72.

[10]Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State, 76.

[11]Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State, 76–82

[12]Quoted in Charles E. Rice, The Supreme Court and Public Prayer: The Need for Restraint (New York: Fordham University Press, 1964), 63.

[13]Peter J. Ferrara, Religion and the Constitution: A Reinterpretation (Washington, DC: Free Congress Foundation, 1983), 34‑35.

[14]Quoted in Rice, The Supreme Court and Public Prayer, 63.

[15]“A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers,” in Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950), Vol. 2, 1777 to June 18, 1779, Including the Revisal of the Laws, 1776-1786, 555. Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (Grand Rapids, MI: Baker Book House, [1982] 1988), 217.

[16]Act of April 10, 1806, C. 20, 2 Stat. 359, 360. Quoted in Rice, The Supreme Court and Public Prayer, 63‑64.

[17]“Bill for the Establishment of District Colleges and University” (1817). Quoted in Charles Wesley Lowry, To Pray or Not to Pray!: A Handbook for Study of Recent Supreme Court Decisions and American Church-State Doctrine (Washington, DC: University Press of Washington D.C., 1963), 38-39.

[18]Thomas Jefferson, “Second Inaugural Address,” in James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789‑1902, 12 vols. (Washington, DC: Bureau of National Literature and Art, 1907), 1:379‑80.

[19]Franklin Hamlin Littell, From State Church to Pluralism: A Protestant Interpretation of Religion in American History (Chicago, IL: Aldine Publishing Co., 1962), 99.

[20]Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute for Public Policy Research, 1978), 14-15.

[21]Leo Pfeffer, Church, State and Freedom (Boston, MA: Beacon Press, 1953), 98.

[22]Robert Boston, Why the Religious Right is Wrong about Separation of Church and State (Buffalo, NY: Prometheus Books, 1993), 80.

[23]J. Marcellus Kik, Church and State: The Story of Two Kingdoms (New York: Thomas Nelson & Sons, 1963), 124.

[24]Kik, Church and State, 116.

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