Freedom From Religion
The Establishment Clause seems to be one of the least-understood parts of the US Constitution. Though whether that misunderstanding is borne out of true confusion or willful ignorance—or in some extreme cases, the practice of historical revisionism1—is debatable.
The First Amendment contains several important ideas, that we call clauses. In full, the First Amendment reads:
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 Establishment Clause is broken out as the part that says, “Congress shall make no law respecting an establishment of religion.” To understand what this means, we have different methods of interpretation. Without going into too much detail on statutory construction, I would like to argue one of the most compelling points to consider in interpretation is that we “must presume that a legislature says in a statute what it means and means in a statute what it says.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992).
We can either assume that there is superfluous or unintentional language in a document, or that there is not. With regard to the US Constitution, legal theorists tend to hold the same maxim that the Supreme Court did in the Germain case cited above.2 If we take the position that all of the words of the Establishment Clause were intentional and have meaning, then we have to understand what that meaning might be.
But before we delve into the meaning and intent of the words as written and adopted by the representatives of the Continental Congress, I need to make one point, with the help of Justice Scalia.
If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.3
In other words, we need not care what the intent of the authors was—we only care that they intended to use those words. What we do care about, is the meaning of the words the authors used. Some interpreters care about the meaning of the words as we use them today, while others care about the meaning of the words as they were used when written. For argument’s sake, let us take the latter position.
Discovering Meaning
How do we know what the words meant at the time they were written? We can solve this particular problem in a number of ways, and in a textual criticism, we are likely to employ those multiple techniques simultaneously.
First, we can look at the context. Are there any clues given in the document? There are in fact a couple of clues.
The first clue is the wording of the Establishment Clause: Congress shall make no law respecting an establishment of religion. We have a hint right here. We can read the entirety of the Constitution and see that the language is concise, precise, and pointed. There are only 4,543 words in the original Constitution, including signatures. For such an important document, it is brief. The Establishment Clause, which is the first part of the First Amendment, adds only ten more words, of which five it shares with each of the remaining clauses in the First Amendment.
The clue is that the authors did not write: Congress shall make no law establishing a religion. They could have, if they meant nothing more than that. Given our premise that legislatures say what they mean and mean what they say, then we have to accept that “respecting an” has some nontrivial meaning.
And it does.
This turn of phrase is unusual to us, because our most common usage of the word “respect” has a notion of an attitude of admiration. If I say, “I respect my father,” you would likely understand that to mean, “I have some sense of admiration for my father.”
This usage does not fit well with the statement: Congress shall make no law respecting an establishment of religion. Congress shall not enact a law that admires an establishment of religion? No. That does not make sense. Similarly, we use “respect” to say, “I respect your decision,” when we mean to give deference to the judgment of another. Would it make sense for Congress to forbid laws that give deference to the establishment of religion? Perhaps, in a way, but that interpretation seems tenuous.
But let us get back to the meaning of words. I said above that we were going to look to the meaning of the words as they were used when written. Context convinced us to look at “respecting,” but context is not giving us the meaning of “respecting.”
Enter the Lexicographer
For that, we must turn to outside contemporary sources. We could look at other writings to put respecting into context, and if we were performing a comprehensive scholarly analysis of the Establishment Clause here then we would. Fortunately, around the time of the Revolution and the formation of the United States, lexicographers were beginning to compile dictionaries of American English usage and meaning.
One such lexicographer was Noah Webster. Mr. Webster is the name behind many modern dictionaries, like the Merriam-Webster dictionaries and the Webster’s Third New International Dictionary Unabridged. Webster compiled several dictionaries, including an 1828 version. Although this dictionary came some 40 years after the Continental Congress that adopted the Constitution, I am going to use it as a reference point because it is the version I have handy. There are earlier and closer dictionaries that we could use, but the entries for this particular word are close enough as to be interchangeable.
Webster’s 1828 entry for respecting states, in part:
Regarding; having regard to; relating to. This word, like concerning, has reference to a single word or to a sentence.
This gives us a rather different view of respecting than we might have expected. Where we give respect a twist of admiration, the authors of the Constitution and Bill of Rights more likely were to have used it as a referential word, especially in the context of the First Amendment.
Disestablishing Religion
If we plug this into the Establishment Clause, we see a very different meaning return: Congress shall make no laws having regard to or relating to an establishment of religion.
This starts to look more like Thomas Jefferson’s idea of a wall of separation of church and state. No laws regarding or relating to an establishment of religion is a far cry from merely not establishing a state religion. It is from this interpretation that the Supreme Court sees that any entanglement with religion, and any preferential treatment of one religion over another—or indeed, over secularism as a whole—is unconstitutional.
There is a strong argument that secularism is preferred, as there is no prohibition on promoting secularism while there is on promoting religionism.
In another article, I will explore the disestablishment of religion during the founding era, as the United States converted form colonial rule to independent, self-rule.
For now, I will leave you with this idea: The beliefs of the founders respecting religion are varied and arguable and ambiguous; the opinions of the founders with regard to whether religion and state should be entangled are clear, obvious, and documented. •
- In particular here, I am thinking of a prominent Christian-nation history revisionist named David Barton, whose claims regarding the United States as a Christian Nation have been debunked numerous times, and which I will not investigate here.
- The Supreme Court in the recent Second Amendment case, D.C. v. Heller, justified a personal, individual right to bear arms based on an argument that the initial clause in the Second Amendment (“A well regulated militia, being necessary to the security of a free state …”) is introductory and not controlling language—i.e., superfluous.
- This is quoted from remarks by Justice Antonin Scalia at The Catholic University of America Washington, D.C., on Oct. 18, 1996. The language was extracted from the Internet Archive, from document once posted on the Court TV Web site.
Tags: establishment clause, first amendment, freedom from religion
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I have always understood the establishment clause to mean that the federal government could not establish a state religiion for the states.It says nothing about promoting one religion over another.
The Costitution was written so the common man could grasp it and understand its meaning.
Pehaps interpret means the hidden intent of the statute or what the author meant when the law was promulgated.Judges should not be interpreting laws.The intent of the lawgiver should be clear and concise and precise.The courts apparently do not concern themselves why the law was written but only whether it is constitutional.
The greatness of this country was founded on and grounde in the Christian Religion and Faith.It has been said there is no official religion of the US.This is erroneous.Tradition occurs through constant repetition expressed by the will of the people and the people willed the Christian Religion and its principles to be costantly exercised.Tradition has the force of law.Christianity is therefore the law of the land and is the official Religion.
The state owes its existence to the Christian Religion and can never repay the debt.
The government is obliged to promote an atmosphere in which the Christian Religion can flourish.
The state may make men good but religion is necessary to preserve that state of goodness and actually makes men better,virtuous,just,honest, by teaching moral values as something good and desirable.The state does not do this. But morality and virtue are absolutely necessary if the state is to contimue in existence.
So it is the state that needs Christianity if it wishes to survive.
There is no such thing as separation of Church and state.
Christianity teaches love of neighbor but not the legal system.A murderer is not put to death on the premiss that he did not love his neighbor.
The official religion of this country is Christianity and it is obvious and without it the state will not exist for long.
Judge Crabb just recently ruled that the National Day of Prayer was unconstitutional because it had no secular purpose.She errs.Men and women pray for a number of reasons but it makes them better and better citizens.As a matter of fact the whole purpose of the Christian Religion is directed to the secular sphere to make men and women better citizens,perhaps even holy, which benefits the common good of the state.
In conclusion the state actually has the obligation to promote Christianity and this can be done very easily.Vouchers is one example. Also destributive justice is involved.Christianity is the official religion of this country.
The Supreme Court had no authority to remove school prayer and Bible reading in the classroom.The Supreme Court’s decisions are not to be considered absolutely final in constitutional questions touching upon the powers of the state.School prayer should be left up to the individual communities whether they be hamlets,villages,towns,cities,or munciipalities.The Governors of the states have the authority to reinstitute school prayer if they wish but either don’t know it,or are afraid to do it,ordon’t know their rights,or think they have to follow the courts and are intimidated.
Congress cannot prohibit school prayer and so neither can the courts.
@Bruce Barron
You hold a common misconception. The Establishment Clause does prohibit the establishment of a religion for the states, and it does prevent the government from promoting any specific religions, sects, denominations, or beliefs.
The best evidence of what the Establishment Clause means comes from Thomas Jefferson and James Madison, who were the authors of the Virginia statutes of religious freedom and the Declaration of Independence and Constitution and Bill of Rights respectively.
Madison, for example, said, “Who does not see that the same authority which can establish Christianity in exclusion of all other religions may establish, with the same ease, any particular sect of Christians in exclusion of all other sects? That the same authority which can force a citizen to contribute threepence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?” From, A Memorial and Remonstrance Against Religious Assessments, addressed to the Virginia General Assembly, June 20, 1785.
There was no “lawgiver.” See, Source of law is not religion.
There absolutely is such a thing as church/state separation. The US has no official religion. Tradition cannot change the fact that we have a godless Constitution. If the US was founded on Christianity, then the Founding Fathers sure fooled us when they (President Adams and the unanimous vote of the Senate in 1797) signed this: “… the Government of the United States of America is not, in any sense, founded on the Christian religion …” in the Treaty of Tripoli.
There is no secular purpose to government-sponsored prayer. People can pray on their own. No one, from the government to the ACLU, has ever said that people cannot pray on their own. When the government steps in and endorses a national day of prayer, then it is endorsing religion. This, it cannot constitutionally do. I would not so lightly be willing to say that prayer is no longer a religious activity.