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A conference committee was appointed, and on September 24 and 25 the House and Senate, respectively, approved the Bill of Rights.
Madison's position during the congressional debates on his proposed fourth and fifth amendments may be summarized as follows:
First, the free exercise of religion is a basic right of the individual which must be preserved from any encroachment by either the Federal or the State governments.
Second, the Federal Government must be prohibited from establishing a religion, that is, from designating a particular religion as the national religion.
Third, the Federal Government-and certainly the State governments are not to be prohibited from enacting legislation which affects religion but which does not establish a particular religion.
Madison's “Memorial and Remonstrance" of 1784 is an important landmark in the struggle for freedom of religion and separation of church and state. It was directed against a proposal advanced by Patrick Henry in the Virginia House of Delegates to raise funds, through assessments, for the salaries of teachers of the Christian religion. The "Remonstrance” paved the way for the enactment 2 years later of Jefferson's bill establishing religious freedom in Virginia.
On July 26, 1962, I inserted in the Congressional Record the text of a speech which I delivered last year on “Madison's Contributions to Religious Freedom." In that speech I discussed the “Memorial and Remonstrance" at some length.
It is sufficient at this time to point out that Madison's argument in his "Remonstrance" against using State funds to subsidize religion must not be taken to imply that he objected to giving public recognition to the Diety. The "Remonstrance” was directed—not against religion—but against the establishment of a particular religion. Section 9 remonstrated against the subsidy proposal.
"Because the proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every nation and religion, promised a luster to our country, and an accession to the number of its citizens. What a melancholy mark in the bill of sudden degeneracy. Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the legislative authority" ("Letters and Other Writings of James Madison,” vol. I, 1865, J. B. Lippincott & Co., p. 166).
Madison concluded his “Memorial and Remonstrance" with the following words:
“We, the subscribers, say that the general assembly of this Commonwealth have no such authority. And in order that no effort may be omitted on our part against so dangerous an usurpation, we opposed to it this remonstrance earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act which would affront His holy prerogative or violate the trust committed to them; and, on the other, guide them into every measure which may be worthy of His blessing, redound to their own praise, and establish more firmly the liberties, the prosperity, and the happiness of the Commonwealth" (id., p. 169).
Madison's belief that "establishment of religion" meant establishment of a particular religion is expressed in several of his letters.
On March 2, 1819, he wrote to Robert Walsh :
“It was the universal opinion of the century preceding the last, that civil government could not stand without the prop of a religious establishment” (id., p. 125).
And on July 10, 1822, to Edward Livingstone:
"It was the belief of all sects at one time that the establishment of religion by law, was right and necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was, what was the true religion. The example of Holland proved that a toleration of sects dissenting from the established sect was safe, and even useful. The example of the Colonies, now States which rejected religious establishments altogether, proved that all sects might be safely and advantageously put on a footing of equal and entire freedom" (id., pp. 275-276).
In a letter of 1832 to Reverend Adams, Madison wrote:
"In most of the governments of the Old World the legal establishment of a particular religion and without or with very little toleration of others makes a part of the political and civil organization. * * *
“Until Holland ventured on the experiment of combining a liberal toleration with the establishment of a particular creed, it was taken for granted, that an exclusive and intolerant establishment was essential. * * * The prevailing opinion in Europe, England not excepted, has been that religion could not be preserved without the support of government nor government be supported without an established religion. * * *
"It remained for North America to bring the great and interesting subject to a fair, and finally to a decisive test” (Writings of James Madison,” vol. 9, ed. Gaillard Hunt, pp. 484-488).
If any doubt remains regarding Madison's attitude toward legislation affecting religion, but not establishing a religion, it should be resolved by the fact that Madison was a member of the joint committee for appointing chaplains for the two bodies of Congress, that he approved, as President, bills appropriating funds for the payment of the chaplains of Congress and of the Armed Forces, and, further, that he approved as President bills appropriating funds for the promotion of religion and religious education among the Indians.
C. THOMAS JEFFERSON
In Everson against Board of Education ("Writings of James Madison," vol. 9, ed., Gaillard Hunt), Mr. Justice Black stated at page 16:
“In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between church and state.'”
In recent years, the Supreme Court has misinterpreted what Jefferson meant by “a wall of separation." A review seems appropriate, therefore, of Jefferson's concept of the church-state relationship.
I will begin with the epitaph which Jefferson wrote for inscription upon his tombstone. It reads quite simply:
"Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the statute of Virginia for religious freedom and father of the University of Virginia.”
Presumably Jefferson considered these three achievements to be the most significant of his contributions to society. Therein we find his concept of the proper relationship between church and state.
In the Declaration of Independence Jefferson wrote these familiar words:
“We hold these truths to be self-evident; that all men * * * are endowed by their Creator with unalienable rights; that among these are life, liberty, and the pursuit of happiness.”
In conclusion Jefferson stated :
“With a firm reliance on the protection of divine providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."
Jefferson introduced his bill for establishing religious freedom in Virginia on June 13, 1779. It was adopted in 1786. Section 1 begins:
“Well aware that the opinions and belief of men depend on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint” (Padover, op. cit., p. 946).
The bill concludes with these words:
“We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, or shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities” (id., p. 947).
These two documents mark Jefferson unmistakably as an advocate of religious freedom and as an opponent of the establishment of religion. His interpretation of "establishment” is clearly defined in the following excerpt from a paper which Jefferson wrote in February 1826 :
"The attack on the establishment of a dominant religion, was first made by myself. It could be carried at first only by a suspension of salaries for 1 year, by battling it again at the next session for another year, and so from year to year, until the public mind was ripened for the bill for establishing religious freedom, which I had prepared for the revised code also. This was at length established permanently, and by the efforts chiefly of Mr. Madison, being myself in Europe at the time that work was brought forward” (id., Padover, p. 1295).
Or as P. A. Bruce said in his "History of the University of Virginia” :
"Jefferson was fully resolved to tear up the Episcopal Establishment of Virginia root and branch, whenever the hour seemed opportune to do so. He was eager, as we have seen to raze the whole system of monopoly, which in 1776, he found in existence in the New Commonwealth ; but he was particularly impatient to demolish that branch of it which was represented in the union of the church with the state" ("History of the University of Virginia," vol. 1, Bruce, P. A., p. 22.)
In providing for religious worship at the University of Virginia, Jefferson showed again that his insistence upon the separation of the state from an established religion was, by no means, to include the separation of the state from religion generally.
The University of Virginia, of course, has been a tax-supported, education system on State property ever since its foundation. While rector of the university, Jefferson submitted to the board of visitors the following regulation, which James Madison, as a member of the board approved :
"One of [the] * * * rooms on [the] * * * middle floor [of the library) shall be used for annual examinations, for lectures to such schools as are too numerous for their ordinary school room, and for religious worship" (id. p. 1111).
Jefferson wrote on October 7, 1882:
"In the same report of the commissioners of 1818 it was stated by them that ‘in conformity with the principles of constitution which place all sects of religion on an equal footing, with the jealousies of the different sects in guarding that equality from encroachment or surprise, and with the sentiments of the legislature in freedom of religion, manifested on former occasions, they had not proposed that any professorship of divinity should be established in the university; * * *
"It was not, however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society. On the contrary, the relations which exist between man and his Maker, and the duties resulting from those relations, are the most interesting and important to every human being, and the most incumbent on his study and investigation. The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in a general institution of the useful sciences.
"But it was thought that this want, and the entrustment to each society of instruction in its own doctrine, were evils of less danger than a permission to the public authorities to dictate modes or principles of religious instruction, or than opportunities furnished them by giving countenance or ascendency to any one sect over another. A remedy, however, has been suggested of promising aspect, which, while it excludes the public authorities from the domain of religious freedom, will give to the sectarian schools of divinity the full benefit for public provisions made for instruction in the other branches of science. These branches are equally necessary to the divine as to the other professional or civil characters, to enable them to fulfill the duties of their calling with understanding and usefulness.
Jefferson went on to conclude:
"It has, therefore, been in contemplation, and suggested by some pious individuals, who perceive the advantages of associating other studies with those of religion, to establish their religious schools on the confines of the university, so as to give to their students ready and convenient access and attendance on the scientific lectures of the university; and to maintain, by that means, those destined for the religious professions on as high a standing of science, and of personal weight and respectability, as may be obtained by others from the benefits of the university. Such establishments would offer the further and greater advantage of enabling the students of the university to attend religious exercises with the professor of their particular sect, either in the rooms of the building still to be erected, and destined to that purpose under impartial regulations, as proposed in the same report of the commissioners, or in the lecturing room of such professor.
"To such propositions the visitors are disposed to lend a willing ear, and would think it their duty to give every encouragement, by assuring to those who might choose such a location for their schools, that the regulations of the university should be so modified and accommodated as to give every facility of access and attendance to their students, with such regulated use also as may be permitted to the other students, of the library which may hereafter be acquired, either by public or private munificence. But always understanding that these schools shall be independent of the university and of each other. Such an arrangement would complete the circle of the useful sciences embraced by this institution, and would fill the chasm now existing, on principles which would leave inviolate the constitutional freedom of religion, the most inalienable and sacred of all human rights” (id., pp. 957–958).
Jefferson's record as President of the United States further confirms the fact that his opposition to the establishment of a particular religion did not extend to laws affecting religion in general.
Like Madison, Jefferson signed bills authorizing appropriations for the payment of Chaplains in both Houses of Congress and in the Armed Forces. He also signed bills appropriating funds for the promotion of religion and religious education among the Indians. These latter appropriations resulted from a treaty concluded with the Kaskaskia Indians and sent to the Senate on October 31, 1803, by President Jefferson. It contained the following passage:
“And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give, annually, for 7 years, $100 toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature. And the United States will further give the sum of $300, to assist the said tribe in the erection of a church." ("American State Papers, Class II," vol. LV, p. 687).
Clearly, Thomas Jefferson did not mean that the “wall of separation" was to be so insurmountable as to preclude any church-state relationship whatever. In January 1799 he wrote to Elbridge Gerry :
"I am for freedom of religion, and against all maneuvers to bring about a legal ascendency of one sect over another" (Padover, op. cit., p. 263).
Jefferson's position is well summarized in "Religion and Education Under the Constitution," by James M. O'Neill who states :
"At any rate, we know conclusively, if we know Jefferson, that he could not possibly have been thinking of a wall so high, so impregnable, so absolute, so completely without gates, or stiles, or friendly openings, as forever to prohibit any intercourse, neighborly help, or cooperation of any kind between government and religion” (p. 83).
D. NORTHWEST ORDINANCE
The Northwest Ordinance was passed by the Continental Congress in 1787 and affirmed by the First Congress on August 7, 1789. It provided for the government of the territory bounded by the Mississippi and Ohio Rivers and the Great Lakes.
The Northwest Territory was under Federal jurisdiction until its components became States. Accordingly, the relationship there between church and state is significant in interpreting what the framers of the first amendment meant by laws "respecting an establishment of religion.”
Article III of the Ordinance stated in part:
“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
The church-state relationship in Ohio was a particularly close one. In an article written for the Mississippi Valley Historical Association, Margaret J. Mitchell stated :
“We usually say the church and school go hand in hand but in the case of Ohio one would rather say the church was the power behind the earlier educational enterprises. From the very inception of the plan to colonize Ohio, Manasseh Cutler-Congregationist minister and chief officer of the Ohio company—had planned to found a great institution of learning in which morality and religion should be a part of the curriculum since, as he puts it in his sermon, “that was the only way to make citizens conform to law."
"In 1788 the Ohio company bargained for two townships for a college and in 1797 an academy was erected at Marietta. *** In 1795, the Connecticut assembly authorized the sale of the rest of the reserve, providing that the money arising from the sale thereof should constitute a perpetual fund, the interest on which was to be appropriated to the use and benefit of the several ecclesiastical societies, churches, or congregations of all denominations in the territory, to be applied to the support of their ministers and schools” (Religion in Early
Ohio," Margaret J. Mitchell, Misssisippi Valley Historical Association Proceedings (1915–18), pp. 79–80).
Rev. Richard J. Gabel, A.M., S.T.D., noted in his book, “Public Funds for Church and Private Schools":
“There was no exclusion of religious schools or religious education in this distribution [of funds), since the State in general and in the persons of its early executives seems to have considered the intimate union of religion and education as expressed in the Northwest Ordinance and in the State constitution as a binding injunction to encourage religious education” (pp. 257, 258).
In State of Ohio, etc. v. The Trustees of Sec. 29, etc., 11 Ohio 24 (1841), the court was presented with the issue of determining whether a religious society known as the Roman Catholic Society of Delhi Township was to be entitled to a proportionate share of the fund for support of religion. Rejecting the petition because the society had not met certain statutory qualifications, the court noted that:
“The law now in force * * * is found in the act of March 14, 1832, to incorporate the original surveyed townships.' In the 13th section of this act it is provided that each and every denomination of religious societies, after giving themselves a name, shall appoint an agent, who shall produce to the trustees a certificate, containing a list of their names, and numbers, specifying that they are citizens of said township; and the agent shall pay over an equal dividend of the rents, within 3 months after they shall have been received, to be appropriated to the support of religion, at the discretion of each society; provided that all members, above the age of 15 years, shall be entitled to have their names enrolled by any society' ” (pp. 26-27).
The Ohio State auditor's report of 1939 discussed the close relationship of church and state in Ohio at page 31:
“Originally, the care of these [ministerial] lands was placed by Congress in the hands of the State legislature and locally, three men were elected to have charge of the lands with the responsibility of taking care of them. They met once a year, and after paying all claims, including the services of the officers, the remainder was distributed pro rata, to the different religious societies that filed with the trustees a sworn statement of the number of members, 15 years of age or older, each living in the original surveyed township. No distinction was made as to different religious organizations and each received a share proportionate to its number of members.
"The duty of administering these lands now falls upon the auditor of State who in his capacity as supervisor of school and ministerial lands has immediate charge of making these lands produce their utmost, distributing the funds and keeping the records and collecting all rents” (Ohio, auditor of State, “A Short History [of] Ohio Land Grants,” Columbus, Ohio, 1939).
So here we find in the State of Ohio—which came from the Northwest Territory—as late as 1939—and I have no evidence which would indicate that the practice has been terminated—the auditor of the State distributing to each religious denomination its pro rata share of the annual net income from ministerial land.
The relationship of church and state in the Northwest Territory illustrates the fact that the establishment clause in the first amendment was intended to prohibit the establishment of a particular church. In the New York Prayer case the Supreme Court distorted that meaning.
The application of the establishment clause to religion in the general sense was discussed at some length in a House Judiciary Committee report of 1854. This report rejected the petitions of citizens of several States that “the office of chaplain in the Army, Navy, and at West Point, at Indian stations, and in both Houses of Congress, be abolished" (U.S. House Reports, vol. 2, No. 124, 33d Cong., 1st sess., 1853–54).
Mr. James Meacham, of Vermont, reviewing the reasons for the committee's decision to reject the petition, wrote as follows:
"Having made that decision, it is due that the reason should be given. Two clauses of the constitution are relied on by the memorialists to show that their prayer should be granted. One of these is in the sixth article, that 'no religious test shall ever be required as a qualification to any office of public trust under