The Myth Of Church-State Separation

David E. Steinberg, Thomas Jefferson School of Law

Abstract

The Myth Of Church-State Separation

by David E. Steinberg

Abstract

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. When they enacted the First Amendment, the framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Establishment Clause guaranteed that the federal government would not interfere in state regulation of religion – whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church and state, the framers adopted the clause to protect divergent state practices – including state establishment of religion, which continued in several states after the Establishment Clause had been enacted.

Numerous framing era sources show that the Establishment Clause was not intended to separate church and state. In the early years of the United States, the actions of the federal government are not consistent with a desire to separate church and state. To the contrary, the federal government endorsed legislative prayer, hired chaplains, built a church and hired a priest for the Kaskaskia Indian Tribe, and spoke of the importance of religion in the Northwest Territory Ordinance.

Statements of the framers further demonstrate that the Establishment Clause never was intended to mandate a separation of church and state. During discussion of the Establishment Clause in the House of Representatives, James Madison was questioned about whether the Establishment Clause might prohibit state establishments of particular religions. In response, Madison stated “that the purpose of his amendment was to recognize restrictions on congressional power. He meant to assure [Congressman] Sylvester and [Congressman] Huntington that the amendment would not abolish state establishments, which seems to have been their fear.”

Subsequent statements by the framers similarly asserted that the Establishment Clause was intended only to limit federal power, and was not intended to endorse a particular approach to church-state relations. For example, in an 1808 letter, Thomas Jefferson wrote: “I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion [the First Amendment], but from that also which reserves to the States the powers not delegated to the United States [the Tenth Amendment] . . . . It must then rest with the States, as far as it can be in any human authority.” Similarly, at the 1788 Virginia convention called to ratify the Constitution, James Madison asserted: “There is not a shadow of right in the general government to intermeddle with religion.”

The framers enacted the Establishment Clause as a shield, to protect state religious regulation from federal interference. However, the Supreme Court has transformed the Establishment Clause into a sword, which gives federal judges the power to meddle in areas traditionally reserved for the states. Through bad history and questionable public policy, the Supreme Court has created an Establishment Clause that is the exact opposite of what the framers intended.