There is No Separation of Church & State in the Constitution

The First Amendment, and indeed the entire Constitution, says NOTHING about the separation of church and state.

In the run up to the 2010 elections, Christine O’Donnell of “I’m not a witch” fame, displayed a commanding understanding of the Constitution and the principles by which it was founded.  When her leftist opponent Chris Coons, an admitted Marxist, begins throwing around the assertion that the First Amendment create a separation of church and state, O’Donnell challenged him – and rightly!  This is a shocking indictment of how little Americans know about the Constitution and about our founding principles.  The worst part may be the arrogance that Coons had even though he was flat wrong!

During the debate when O’Donnell and Coons had this exchange, there was an appalling reaction from the audience. These were law students, who clearly have no understanding of the Constitution, the history of the founding, or the principles of republican governance.

So let’s look at the First Amendment. It says:

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.

The First Amendment is just a pro-religion as it is anti-religion. After all, it specifically says that Congress cannot make any law preventing the free exercise of religion.

So congress must let people – all people – freely exercise their religion. It does not say that the rule only applies to those in self or private employment, nor does the rule exclude those who work for the government. The various trades and occupations of the citizenry is never considered at all in the First Amendment. This Amendment provides unlimited freedom for all people to exercise their religion.

It is also noteworthy that the First Amendment is written specifically to Congress. Not to various state legislatures, not to municipalities, not to county or local governments. It is a rule exclusively for the Congress of the United States of America. This is important because the argument is whether or not the First Amendment includes a separation of church and state. In fact, the Constitution leaves to the states all that which is not specifically enumerated. This is found in the 10th Amendment, which says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

So Congress left this up to the States. Congress may not establish a religion or prevent any person from worship in any way. Beyond that, the Constitution is silent on the practice of religion, therefore, it is up to the states to decide. States are free to make an official religion if they choose to! In 1787 when the Constitution was ratified, a third of the States had official religions.

Not only is the First Amendment pro-religion as much as anti-religion, and not only do we have some 50 years of United States history including state religions, but we also have the founders own words. How about this from the pen of John Jay, who was an author of the Federalist Papers and President of the Continental Congress in 1777-78:

Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers. National prosperity can neither be obtained nor preserved without the favor of Providence.

John Jay wrote that passage in 1816, 29 years after the Constitution was ratified.

Let’s finish with a strong one/two knock out punch… Here are two quotes from the Father of Our Country himself, George Washington. In a letter to State Governors in 1783, Washington said:

I now make it my earnest prayer, that God would have you and the State over which you preside, in his holy protection, that he would incline the hearts of the Citizens to cultivate a spirit of subordination and obedience to Government–to entertain a brotherly affection and love for one another, for their fellow Citizens of the United States at large, and particularly for their Brethren who have served in the Field, and finally, that he would most graciously be pleased to dispose us all, to do Justice, to love Mercy, and to demean ourselves with that Charity, Humility, and Pacific temper of mind which were the Characteristicks [sic] of the Divine Author of our blessed Religion, and without an humble imitation of whose example in these things, we can never hope to be a Happy Nation.

And in the very first inaugural address, George Washington said:

…It would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe, who presides in the Councils of Nations, and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the People of the United States, a Government instituted by themselves for these essential purposes: and may enable every instrument employed in its administration to execute with success, the functions allotted to his charge.

The law students that gasped when Christine O’Donnell challenged the notion that there is a separation of church and state written (or even implied) in the Constitution should feel silly – they are completely wrong. All the Constitution says is that Congress can’t pass a law establishing it, or prevent anyone from practicing it. It is the leftist domination of the educational institutions that produced the student reaction. My hope is that they study hard and find the truth for themselves.

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  1. Doug Indeap says:

    Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    While the First Amendment only limited the federal government as you noted, you leave unmentioned that the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights’ constraints to state and local governments.

    It is instructive to recall that the Constitution’s separation of church and state reflected, at the federal level, a “disestablishment” political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term “antidisestablishmentarianism,” which amused some of us as kids.) It is worth noting, as well, that this disestablishment movement largely coincided with another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.

    This sentiment was recorded by a famous observer of the American experiment: “On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point.” Alexis de Tocqueville, Democracy in America (1835).

    The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

  2. Hi Doug,

    I thoroughly enjoyed your comment. Though, “comment” hardly describes this excellent work of argumentation. Thank you.

    For all the fun, provocative, snarky, back and forth that goes on through these pages, it is this type of thoughtful debate that I so enjoy.

    Here is my rebuttal….

    “We the People” only means that a group of free people are establishing a Constitution. Certainly, no person ever claimed that the document could have been written by God.

    This begs the question: Where do the “People” get the power to write the Constitution in the first place?

    Where does freedom come from?

    Freedom comes from God; there can be no other source. If freedom comes from man, it means that one man is the arbiter of freedom over another.

    The entire idea of liberty is based on the notion that natural rights come from God and that all men are created equal under God.

    Without natural (God-given) freedom, “We the People” could not have endeavored at all to write the Constitution, since it would surely have been illegal under the Crown.

    The Article VI clause regarding no religious test for public office does not buttress the case that government is necessarily secular, it only says that it doesn’t matter what religion you are; a positive right.

    Your argument citing Madison culminates in a quote that supports my thesis, not yours! “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    That is exactly correct. But that does not have anything to do with whether or not God is the basis of freedom; if people can worship in public buildings; if Congress can begin with prayer; and all other manner of public worship.

    Lastly, your (excellent) argument concludes with a summary idea that serves as the core of our disagreement:

    “Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.”

    I think where we disagree is first, in the operational impact of the First Amendment and second, what the core principle in establishing the Constitution is. I would argue that any government official can practice religion any time and any place and that any person can practice their religion any time and any place.

    We only have a secular government in that it is precluded by the Constitution from establishing a religion. However, the very creation of the Republic could only have been possible with freedom granted by God.

  3. Doug Indeap says:

    Thank you for the kind words and thoughtful response.

    You say: “‘We the People’ only means that a group of free people are establishing a Constitution. Certainly, no person ever claimed that the document could have been written by God.”

    Indeed. Whatever you mean by “only,” it means the people established the government. They did so based on their power and not that of a deity. While, true enough, no one ever claimed the Constitution was written by god(s), that is hardly the point. The point is that “the People” adopted the Constitution to establish a government without resorting to the power or authority of god(s) or, indeed, without referring to god(s) at all.

    You argue that the people get their power and freedoms from God. Fine. You are free to do so. The Constitution, of course, says nothing of the sort and, thus, leaves each of us free to speculate and believe whatever we want on such philosophical matters. One might say the Constitution is agnostic on such matters.

    Madison’s reference to “national religion” in the statement I quoted could be interpreted to support your thesis only by ignoring its context and everything he says along with it. Note that he says the Constitution forbids “everything like” an establishment of a national religion. The scope of what he had in mind in saying that is revealed by his conclusion that “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts” are contrary to the Constitution. Note, too, that during his presidency, Madison also vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. He pocket vetoed a third bill that would have exempted from import duties plates to print Bibles. Separation of church and state is not a recent invention of the courts.

    You argue that “any government official can practice religion any time and any place and that any person can practice their religion any time and any place.” It is important to distinguish between “individual” and “government” speech about religion. The First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions. Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion; in other words, the predominant purpose and primary effect must be nonreligious or secular in nature. A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.

    I agree with what I think is your overarching thesis, i.e., that the founders would not establish a government that is inherently at odds with their religious convictions, which were largely Christian in nature. Moreover, given the republican nature of our government, I think it is only natural and expected that the laws enacted by our government–in both the founders’ time and today–largely reflect Christianity’s dominant influence in our society.

    That said, there is no reason to suppose that Christianity or theism is an inherent aspect of our constitutional government. Indeed, any such claim is antithetical to the constitutional principle against government establishment of religion. By founding a secular government and assuring it would remain separate, in some measure at least, from religion, the founders basically established government neutrality in matters of religion, allowing individuals to freely choose and exercise their religions and thus allowing Christianity (and other religions) to flourish or founder as they will. As noted above, it is to be expected that the values and views of the people, shaped in part by their religions, will be reflected in the laws adopted by their government. There is nothing in the Constitution that requires or calls for this; it is simply a natural outgrowth of the people’s expression of political will in a republican government. To the extent that the people’s values and views change over time, it is to be expected that those changes will come to be reflected in the laws adopted by their government. There is nothing in the Constitution to prevent this; indeed, just the opposite–the Constitution establishes a government designed to be responsive to the political will of the people. It is conceivable, therefore, that if Christianity’s influence in our society wanes relative to other influences, that may lead to changes in our laws. Nothing in the Constitution would prevent that–and moreover the establishment clause would preclude Christians from using the government to somehow “lock in” (aka establish) Christianity in an effort to stave off such an eventuality.

  4. So do you want a theocracy?

  5. Just like a liberal.

    Where do you get the idea that I would want a theocracy?

    Where?

    Liberals constantly do this – with all issues:

    Normal Person: We should respect the Second Amendment.
    Liberal: So you want kids to have rocket launchers?

    Normal Person: The government should not take over the health care system.
    Liberal: So you want kids to die?

    Normal Person: We shouldn’t have 48 million people on food stamps.
    Liberal: So you want children to be malnourished and old people forced to eat dog food?

    Normal Person: Taxes are too high.
    Liberal: So you think millionaires and billionaires should get a free ride?

    Normal Person: The Constitution does not allow people to be prevented from practicing religion.
    Liberal: So you want a theocracy?

    Instead of framing your snotty, self-righteous, straw man argument with a dumb question, why don’t you consider that which has been written with a critical mind?

  6. Jeff McDowell says:

    I am wondering, if there is a separation as argued here by Harry, then please explain to me why the President of these United States is sworn in by placing his/her right hand a King James bible? Would that not break the very essence of that separation? In a Court of law, you are asked to swear or affirm on a bible, but are now given a choice to not use the bible, but the option to use it is still valid in a court of law.

    What Atheist need to understand is that they are as free to exercise the freedom of not believing in a God, as those who can and do worship their God. That is what the First Amendment grants them. It does not pick sides, it gives freedom to the people, all people to worship or not.

  7. Jeff, you may have misinterpreted what I wrote.

    The President is sworn in using a Bible because the Constitution and the Bill of Rights are what the President is swearing to uphold and abide by. Our constitutional rights are granted by God. these are natural rights; those inherent in our humanity. Since our rights are granted to us by God, it is natural to use the Bible in swearing an oath to protect them. Moreover, the practice is mandated by tradition, though that point is superfluous to this discussion.

    The second paragraph of your comment re-affirms the point of the original post.

  8. in the first constitution states Congress shall not make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. I want to challenge Idiots that changes what our forefathers stood for and died for? and Bibles back in our schools Bring back our America that we lived in

  9. Gus Nelson says:

    I disagree with Harry, even though he makes some interesting points, however, my bigger concern is what implications this holds today. If we agree that everything he said holds true, how would that affect politics today? Correct me if I’m wrong Harry, but from your tone, it would seem that you don’t want there to be a separation of church and state. That is something I cannot agree with at all. Although I haven’t done much research, I’m fairly sure this argument has been used during the “war on Christmas” and forcing the theory of creation into schools debates. Whether its stated in the Constitution or not, I think its obviously wrong for there to be a state religion. I would like to hear your opinion on these issues.

    “Never trust a Catholic, who doesn’t want to murder the gays.” – Somebody

  10. Gus Nelson says:

    EDIT to my previous comment.

    I didn’t want to imply that you want some theocracy to be put in place, unlike what Lauren said. I just wanted to know what your opinion of state religions was.

    Also, although Lauren made an irrational claim, that had no basis from what you stated. You did the exact same thing that you accuse liberals of doing.
    From the tone of your article, you sounded pro-state religion. Although this is VERY different from a theocracy, in your reply made her sound completely stupid by comparing all the other liberal arguments against the amendments. Further more, you CLEARLY stated that Lauren’s comment of a theocracy was related to the freedom to practice religion, instead of state religions. This sir, is the straw man fallacy. You are taking her comment, although it was a little dumb, and twisting it to make it seem like she is against freedom to practice religion. I don’t judge people for making jokes, poking fun, or even being a little insensitive, as long as their argument is logical. And your argument, regarding Lauren’s comment, is not a logical one.

  11. Gus Nelson says:

    Ugh, I’m sorry for the multiple comments, but the more research I do, the more I need to write.
    This comment addresses the original thesis, that there is no separation of church and state. Again, I’m not certain nor do I claim that you believe we should have state religions Harry. However, your post made it clear that you believe they are protected, or at least not prohibited, in the Constitution. While you do make a strong argument for state religion when compared to the first amendment, I think that Article VI of the Constitution makes the argument against it.

    “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    What is important to note is that “no religious Test shall ever be required” For me, that makes a strong case against state religions. For example, if Texas was a “Christian state” wouldn’t that mean that anyone who was in public office would have to accept Christianity as the their religion? Maybe it wouldn’t be as dystopic as it sounds, but it would have some effect like that. Unless the state religion holds as much merit as the state bird (in which case why even bother making it official) then how would a state religion impact the state.
    If I am incorrect in either my assumptions, or my facts, then please tell me so.

  12. Hi Gus –

    Lots of good points and thoughts here. Your comments deserve a thoughtful response, and I will provide one – no time now….wife’s birthday night!

    I’ll provide a proper reply tomorrow.

    In the meantime – here is the short version… The Constitution does not “prohibit the free exercise thereof” meaning all people are free to exercise religion. The 10th Amendment leaves all matters not specifically addressed in the Constitution or Amendments to the States. It follows that each of the 50 States are free to declare a religion if they so choose. That is not to say that I support that (I don’t), but rather that it is nowhere prohibited in the Constitution. Indeed, several States had declared religions long after the Constitution was ratified. (I do not know if these vanished because of Supreme Court rulings, or because the People reversed them; this is worth further research.)

    Your question about Article VI is interesting, My instinct is that declaring a State religion and a religious test for office are mutually exclusive matters. We’d have to look at early nineteenth century State politics to determine…since at that time State religion was a reality.

    More later…. no more time tonight –

    Best –
    HB

  13. Roger Crane says:

    Two important points.

    -I very much agree that all private citizens must be allowed to practice or not to practice religion as they please, subject of course to the limitations placed on any right. This means, for example, that students should be free to pray of their own volition in public school. However, teachers are authority figures and must be held to a higher standard. At the very least, they cannot lead students in prayer.

    -The Establishment Clause was extended to state governments by the 14th Amendment, ratified well after the Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” As local governments derive their legitimacy from state governments, the Clause also applies to municipalities.

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