Original Meaning of the Establishment Clause

Mr. Sandefur over at Freespace has an excellent remark commenting on the original meaning of the Establishment Clause. He was reacting to a post by blogger Unlearned Hand who is putting forth the notion that since the Establishment Clause only applied to the federal government, it was intended to preserve and encourage the ability of the states to establish their own religions and intermingle Church & State in a variety of other ways, (or not).

In fact the Framers, or at least Madison & Jefferson, wanted Church & State separated at the state level (in all states) as well as at the federal level. Yet, they couldn’t achieve this. Tim writes, “as with slavery, religious establishment was an issue that the framers did not have the political power to face head on at the federal level.” This analogy is spot on. “Attempting to abolish religious establishments by federal law—which, by the way, Madison did attempt—would simply have been an impossible task, and the framers of the Bill of Rights instead settled for a federal hands-off approach, with the liberals hoping that at some future time, the states would abolish religious establishments on their own.”

I wrote about this topic as a guest blogger on Freespace here, here, and here.

Unlearned Hand has an excerpt from the Mass. Constitution taken from the time of the Founding, that demonstrates that they clearly demolished the line between Church & State:

[T]o promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several Towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.


It is important to note that the religion clauses of the First Amendment are derived from the natural right of liberty of conscience. These are rights that no government, federal, state, or local may properly infringe. If you want to take a gander at what, according to Madison & Jefferson, state governments must do in order to secure the equal rights of conscience, check out Virginia’s Statute for Religious Freedom penned by Jefferson and pushed through by Madison. Yes, what Mass. had in its constitution was permitted under our original Constitutional order. Yet to Madison & Jefferson, what Mass. did violated the rights of conscience of its citizens and was as much a violation of natural rights as was slavery, which was also permitted at the time.